I. INTRODUCTION

7.1 The continuing acceptability of the jury system depend,,. largely on the confidence of the accused and of the general. community in the impartiality of the jury and the sincerity of its verdict.

This confidence on the part of the accused - and, indeed, on the part of all parties to any case, and even of the public at large - is of the utmost importance, as without it they would cease to regard the trial process, and perhaps even the entire legal system, as being a legitimate institution. Without the element of legitimacy a trial process is, of course, little more than formalised gangsterism.¹

An impartial tribunal is crucial to our system of criminal justice. An impartial tribunal has also been recognised as ca fundamental human right. Article 14(1) of the International Covenant on Civil and Political Rights provides in part:

In the determination of any criminal charge against him, or of his rights and obligations in a suit Eat law, everyone shall be entitled to a fair and public hearing by a competent independent and impartial tribunal established by law.

7.2 trial judge has an overriding responsibility to ensure that the trial is conducted fairly.² This responsibility, which incorporates a duty to reduce or eliminate prejudice and the appearance of prejudice, is all the more vital in a trial before a jury.

Everyone surely agrees that the well of justice must remain clear. Thus by one means or another the poison of prejudice must be kept away from it. If it is not, then the possibility of a miscarriage of justice inevitably accompanies prejudice. No one will know what harm is then done except the jury whose verdict, whatever it be will not inform others as to whether or not it is tainted by prejudice.³

Fairness to the accused is a very difficult concept to define, however. It must be looked at in the context of all the surrounding circumstances.⁴

7.3 Following the recent amendments to the Justices Act, 1902 to require magistrates to consider whether a jury would or would not be likely to convict the accused person when deciding whether to commit him or her for trial, concern was expressed that the trial could be prejudiced where the jurors were aware that a magistrate had decided the accused was likely to be convicted. The jury could “misinterpret its role an little more than at rubber, stamp to endorse the suppositions of the committing magistrate”.⁵ This possibility could arise if the nature of a committing magistrate’s task were to become public knowledge or if, in particular case, media publicity is given to the result of committal proceedings in the form of words used in the Justices Act, 1902.⁶ It may be that, to avoid such prejudice occurring, the section should be further amended to clarify the magistrate’s role. The remainder of this Chapter is concerned with three important sources of prejudice:

• the biased juror;
• prejudicial evidence;
• prejudicial publicity.

II. THE BIASED JUROR

A. Selecting an Impartial Jury

7.4 We have seen, in Chapter 3, how the selection procedures introduced i ri theuu South Wales in 1977 aim to ensure representativeness and randomness and, hence, impartiality in a broad sense. A representative jury is, broadly speaking, a guarantee of impartiality because individual biases are balanced. At the same time, there are some classes of people in the community who, because of their experience or occupation, would be unlikely to be truly impartial and are hence disqualified or ineligible for jury service: those with criminal records, police officers, magistrates, practising lawyers and so on. In Chapter 3 we have made suggestions for widening the pool of people available for jury service and thus enhancing the representativeness of jury rolls.

7.5 We have also seen, in Chapter 4, that the challenge for cause could be used to eliminate the randomly selected juror from a particular trial on the basis of circumstances rendering him or her biased, or likely to be biased, in that trial. The peremptory challenge (can be used to eliminate suspected bias but might also be used for the very purpose of actively promoting the constitution of a jury in one’s favour. We have suggested that too much interference in the random and representative (character of juries is detrimental to the jury system and have proposed that the number of peremptory challenges available to the Crown and to the accused should be reduced.

7.6 Confidence in the impartiality of the jury would also be enhanced if prospective jurors were given an opportunity to notify the court if they feel they would be unable to give impartial consideration to the particular trial. Friends and relatives of the accused, employees of counsel, acquaintances of witnesses and Former victims of offences similar to that charged should not serve on the jury. In order to notify the judge of these matters, prospective jurors must be told in advance of the nature of the case and the identity of the accused and likely witnesses. The judge could advise the panel of these matters. The Law Reform Commission of Western Australia has recommended that the making of such an announcement by the judge should be authorised by statute.⁷ In Canada, the procedure whereby the presiding judge questions the panel prior to the selection process in order to determine whether a basis for lack of indifference exists on the part of any of the prospective jurors, has been approved.⁸ Where a judge feels that in order to make such an announcement he or she would need to find out too much about the case and thereby risk his or her impartiality in the eyes of the jury, the Crown could be asked, in the presence of the jury panel, to outline the nature of the case and the identity of the accused and likely witnesses. The presiding judge could then address the panel by reference to the Crown’s outline and invite those who feel they may be biased to come forward. The Commission considers that this latter procedure is to be preferred.

7.7 We note that the presiding judge is not obliged to discharge a juror who notifies the court that: he or she would not be impartial. The judge has a discretion whether to excuse such a juror, which discretion will be exercised having regard to the proper conduct of the trial.⁹ The aim has been described in England as being to identify those “personally concerned in the facts of the particular case, or closely connected with a party to the proceedings or with a prospective witness”. English judges, for example, have been directed that general grounds such as race, religion, political beliefs or occupation are not sufficient grounds for discharging prospective jurors.¹⁰ Indeed it has recently been held in England that personal reasons for being biased against either the prosecution or the defence were not grounds for disqualifying a juror. A jury’s verdict teas unsuccessfully challenged on the ground that one of the jurors had been a working (i.e. non-striking) coal miner and the accused, a striking miner, was charged with damaging the car of a working miner on his way to work.¹¹

7.8 A person required by the judge to remain on the jury panel in spite of professed bias would probably be challenged by the Crown or the defence, and excluded in that way. A prospective juror who has been bribed or threatened, or who carries a personal grudge, however, is unlikely to notify the court in response to an invitation to do so. In New South Wales, bribery and intimidation are not likely to occur prior to the commencement of a trial, chiefly because no-one but the Sheriff knows in advance of the trial who is on the jury panel.¹² An additional safeguard exists in three Australian jurisdictions in that impersonation of a juror is an offence.¹³ The Commission invites submissions as to whether additional steps should be taken in New South Wales to ensure that corrupted or other biased jurors do not serve.

B. Prejudice Arising During the Course of the Trial

7.9 The responsible court officer or Sheriff’s Officer is, among other things, required to shield the jury from outside influence of a potentially improper kind. When a jury is taken on a view, for. example, it is placed in the charge of the Sheriff’s Officer who is required to make an oath undertaking to convey the jury directly to the location and not to allow them to communicate with members of the public or witnesses in the case. It would seem that this procedure might be usefully employed in the early stages of a criminal trial when the jury is placed in the charge of the Sheriff’s Officer, at the first break or adjournment. If this were done, it would emphasise both to the Sheriff’s Officer and to the members of jury the importance of the concept of protecting the from outside influence. It is only a very short procedure but. It may well have significant benefits. A problem may arise where more than one Sheriff’s Officer is in charge of the jury at various times during the day or during the course of a trial. This may be easily overcome by swearing each of the Sheriff’s Officers who are to have the jury in their charge. We understand that this is the practice in England. Our tentative view is that it should be adopted in New South Wales.

7.10 A juror may be prejudiced during the course of a trial number of ways. A juror could obtain access to inadmissible prejudicial information such as the accused’s record of convictions engage in conversation about the case with counsel, a witness or the accused, or be bribed or threatened. As a general rule the juror prejudiced by such an occurrence should be. discharged.¹⁴ There are also circumstances in which it will be safer to discharge the entire jury and order a new trial. This will occur, for example, where the judge considers that there is a real danger of prejudice to the accused in that the discharged juror has prejudiced the remainder of the jury or some of them.¹⁵ An alternative method of dealing with overwhelming prejudice arising in the course of a trial could be for the judge to permit the jury to bring in its verdict on the condition that if the accused is convicted, the prejudice will be a ground of appeal. This would not of course be conveyed to the jury. One argument in favour of this procedure is that, in spite of the prejudicial material or occurrence, the jury may not have convicted the accused person. It is very difficult to make generalisations about this subject. We simply observe that there may be cases in which it would be in the interests of the accused and the community to avoid the need to conduct a second trial.

7.11 Where the prejudice is not revealed until the verdict has been given and the jury discharged the matter can be raised in an appeal, An appeal based on prejudice of this kind can only succeed if evidence about lhe occurrence can be given to the appeal court. Such evidence may be taken from counsel witnessing or participating in an improper conversation with a juror, for example. If a person who is not a member of the jury has told the jurors or some of them about the accused’s record, that person could be called to give evidence of that matter and the appeal court would then consider whether there had been a miscarriage of justice.¹⁶ Where only members of the jury are witnesses to an occurrence taking place during deliberations, however, the court will not accept their evidence. Thus where a member of the jury reveals the accused’s prior criminal record to the jury during deliberations, the court will not take evidence from any member of the jury about that event.¹⁷ The secrecy of the jury room is protected. In Chapter 8, (paragraph 8.14), we discuss further problems raised when prejudice occurs in the jury room and invite submissions as to whether the secrecy of the jury room should be breached to the extent necessary to permit a juror to give evidence as to objective facts affecting the jury’s deliberations.

C. Inclusion of Peers

7.12 An accused person may consider that elimination of those with a particular bias from the jury is not sufficient. Positive inclusion of jurors favourable to the accused may be sought. Such arguments have in fact been made. Accused people have applied for special. measures to be taken to ensure that the jury includes their “peers”.¹⁸

... An accused may seek to be tried by such persons [his or her peers] in some cases, and in particular those which concern matters of which he himself is knowledgeable but which are outside the normal experience or range of knowledge of the average person, because he considers that such individuals are more likely than ordinary jurors to understand the facts and arguments that he intends to present in his defence.¹⁹

One commentator has proposed that “a judge could be given power upon application by either of the parties or at his own instance, to order that a certain number of jurors ... be drawn from the racial minority of which the accused is a member, or indeed from any other group in society with which he identifies himself”.²⁰ In New South Wales, the Jury Act, 1977 establishes a code for the random selection of jurors which limits the discretionary power of the judge in the areas it covers.²¹ While a judge has the power to discharge a jury so constituted as to be unfair to the accused,²² it is unlikely that any residual discretion remains to permit a judge to require ;a jury to be constituted in a particular way. This situation may be contrasted with the English position whereby a judge has the power to order a jury to include a black juror,²³ to be composed entirely by members of one sex,²⁴ or, to be drawn from an area with a high population of people from the same background, including racial origin, as the accused.²⁵ The Commission invites submissions as to whether judges should have the power described above or whether other measures should be taken to ensure that members of the social or peer group of an accused are included on his or her jury. We note that our proposals in Chapter 3 for improving the representativenes of jurors would make more likely the inclusion, by random selection, of the peers of certain accused people, for example Aborigines, on juries. In addition, our proposal in Chapter 4 for the reduction in peremptory challenges will decrease the Crown’s opportunity to eliminate the peers of the accused from the jury.

III. PREJUDICIAL EVIDENCE

7.13 In a sense, of course, much of the evidence tendered by the Crown in a criminal trial is prejudicial to the person who stands accused in the sense that it implies guilt. Some evidence which is highly prejudicial, however, is not disclosed to the jury. Rules of evidence have developed with respect to various classes of evidence governing the question whether such evidence should be admitted in certain circumstances or not at all, and limiting the general discretion of the presiding judge in certain ways. For example,

As a general rule the prosecution is debarred from tendering evidence to show that the defendant is of bad character, or is guilty of criminal acts other than the offence charged, or has a propensity to commit criminal acts of the same nature as the offence charged, merely for the purpose of leading to the conclusion that the defendant is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.²⁶

Even where evidence is apparently admissible, the presiding judge has a discretion to disallow it if its admission “would operate unfairly against the defendant”.²⁷ Thus the judge may exclude illegally obtained evidence which is technically admissible.²⁸ Evidence ought to be excluded “if it prejudicial tendency outweighs its probative value in the sense that the jury may attach undue weight to it or use for inadmissible purposes”.²⁹

7.14 Where prejudicial evidence is heard by the jury inadvertently, the trial judge has a discretion to discharge the jury.³⁰ Generally a high degree of need for discharge must be apparent,³¹ and the more usual remedy is a correcting instruction from the judge to the jury.³²

Much depends in every case on the nature and degree of the alleged prejudice, the body of evidence already heard and yet to be heard, how far the prejudicial matter may be submerged and pushed into the background by the totality of the evidence, and whether in all the circumstances a clear warning to the jury will be sufficient to avoid or dispel any prejudice and enable to fair trial to be held.³³

7.15 Whether the judge’s statement to the jury to ignore such material can secure a fair trial, however, is debatable. One Canadian study tested whether mock jurors’ verdicts could be affected by instructions limiting the use to which they could put information about the accused’s prior convictions. They were presented with a written description of testimony which included evidence of prior convictions. Half the group were further provided with “limiting” instructions. The researchers found that the limiting judicial instructions had no effect on the decisions of the instructed jurors when compared with the decisions of the non-instructed group.³⁴ These results at least alert us to the possibility that jurors, speaking generally, either are not capable of putting inadmissible material From their minds or are not persuaded by judicial instructions of the propriety and desirability of doing so. In such circumstances, the limiting instruction may be ineffective. One important way to ensure that prejudicial evidence is not given accidentally in the hearing of the jury, is by disclosure of the prosecution’s case at a pre-trial hearing. Disputes as to admissibility can be determined in advance of the trial.³⁵

IV. PREJUDICIAL PUBLICITY

7.16 Jurors may also be prejudiced against an accused by material published in the media. Where prejudice may affect an entire jury panel, as where pre-trial publicity has been extensive, the trial might be postponed³⁶ or a change of venue approved.³⁷ Where a judge is aware of an amount of’ pre-trial publicity he or she should make a point of instructing the jury, or panel, to disregard what they have read or seen beyond the courtroom itself.³⁸ Prospective jurors who feel they would or could be prejudiced by the publicity should be invited to apply to be excused.³⁹

7.17 Where prejudicial publicity occurs during the trial the judge may determine that a limiting instruction will be sufficient to ensure it does not affect their deliberations. When publicity is seriously prejudicial a mistrial can be declared and the jury discharged.⁴⁰ Of course, the judge may question the jurors as to whether they actually viewed or read the prejudicial publication. Even if jurors are aware of the publication it may be that its impact has not been seriously detrimental. The question for the judge, and for the appeal court, is whether the publicity rendered the jury unable to do justice according to its oath. The hallowed principle that justice should not only be done but should also be seen to be done is to the fore in considering prejudicial publicity during a trial. The discharge of the jury is not required, however, when all that is established is that the publicity made it more difficult for the jury to do justice.⁴¹

A. Change of Venue and Postponement

7.18 In New South Wales a court may order a change of venue for a trial if it becomes apparent “that a fair and impartial trial cannot otherwise be had”.⁴² The principle to be applied when an accused applies for a change of venue was set out in Cattell.⁴³ It was said there that “the established principle” was

that the Attorney-General’s discretion to lay the venues for criminal trials should not be overridden save in exceptional cases and for real and substantial reasons... [At the same time, each trial] should be had in such circumstances that all reasonable men would admit that it is a fair trial.⁴⁴

The presiding judge, considering an application for a change of venue, will take account of the whole of the circumstances. In a trial for attempted murder in Griffith, for example, “the Court of Appeal refused a change of venue in spite of the publicity which had been given in Griffith to the committal proceedings. The publicity was limited to records and published accounts of the committal proceedings and the court feared that, if the change of venue application was approved in such a case, the same ground could be raised in respect of every trial scheduled for a country town.⁴⁵ More recently, however, in Rushbrook, a change of venue was ordered from Wollongong to Sydney in a case in which the accused was charged with offences committed in Wollongong and reports of the committal proceedings had been published in a newspaper circulating in that city.⁴⁶

7.19 A change of venue may be a useful solution where publicity has been mainly confined to the area(s) in which the offence was committed. When State-wide publicity of a highly prejudicial nature in major newspapers and on the media has occurred, however, no venue may be entirely satisfactory. In such cases, which would be unusual, postponement of the trial may be desirable. The Supreme Court Rules, giving the presiding judge unqualified control over the hearing and determination of criminal proceedings, appear to authorise an order for postponement in the interests of “the just and efficient disposal of the proceedings”.⁴⁷

B. Proceedings for Contempt of Court

7.20 The likelihood that the publication of prejudicial material during the course of a trial will be punished as contempt of court operates as an inhibition on such publication. The publication, when trial is imminent or duping the course of’ a trial, of material intended or tending to prejudice the fair trial of the accused or to the course of justice is contempt of court.⁴⁸ It is a serious contempt to publish the criminal record of an accused,⁴⁹ to comment on the previous bad character of the accused,⁵⁰ or to publish a pre-trial confession.⁵¹ It is a contempt to publish comment on pending proceedings which prejudges the merits of the case,⁵² or which is likely to hold up a witness or potential witness in a criminal trial to public criticism or opprobrium,⁵³ or, which attacks the veracity of a witness.⁵⁴ It has been held that it is a contempt for a newspaper to report on evidence sought to be tendered at the trial of an accused person before a jury where the trial Judge has ruled that evidence inadmissible.⁵⁵ However, to report the occurrence of an offence, an arrest or charge will not be contempt provided the publication does not purport to prejudge any issue.⁵⁶ Generally speaking it is permissible to report fairly and accurately on criminal proceedings.⁵⁷

7.21 It can be appreciated that the effects of wrongful publication can include wasted expense on an aborted jury trial, delay in concluding proceedings and additional distress for accused people and victims of crime. In the absence of an Australian counterpart of the United States First Amendment guaranteeing freedom of speech and of the press, the rules as to contempt of court nevertheless seek to establish a fair balance between the two public interests : impartial justice and public discussion.⁵⁸ The Chief Justice of Victoria remarked recently:

We in this country pride ourselves upon the fairness with which accused persons are treated and the courts go to great lengths to ensure that accused persons have a fair trial. But all the courts’ efforts will be in vain if the purveyors of news distribute far and wide, so that members of the jury must see or hear, it, information about an accused which the rules designed to achieve a fair trial prescribe that they should not see or hear.⁵⁹

7.22 The Australian Law Reform Commission has suggested that the law relating to contempt is so uncertain that it forces publishers to be over-cautious. This in turn is an undue restriction on publicity of court proceedings and, more generally, on freedom of expression.⁶⁰ The New South Wales Court of Criminal Appeal, however, has been reluctant to interfere with the exercise of a trial judge’s discretion in deciding not to discharge a jury when prejudicial publicity has occurred. There is a tendency to rely on the ability of jurors to ignore such publicity. In R. v. Smith, Chief Justice Street said,

This Court has repeatedly emphasised that the decision to discharge or not is; essentially one within the discretion of the trial judge, being a decision to be made ii n the awareness of contemporary atmosphere and the likelihood of material prejudice being (occasioned to the accused person. Moreover, trial judges should not be encouraged to discharge juries merely upon the ground of some prejudicial material having been published if appropriate directions can cure the situation.⁶¹

7.23 Where pre-trial publicity h as been prolonged and substantial, arousing a good deal of public debate as in, for example, the Chamberlain and Trimbole cases there may be an argument for giving the accused the option to elect trial by a judge sitting without a jury. In Chapter 10 the Commission rejects the argument in favour of judge-only trial in very complex cases. In the context of extremely prejudicial pre-trial publicity, however, non-jury trial at the option of the accused could be the only way to secure an impartial trial for some people. If such an option were implemented, we consider that a clear case of prejudice because of publicity so widespread that change of venue, postponement or a warning to the jury would not be effective, must be made out by the accused person before a trial by a judge sitting alone could be contemplated. The Commission would welcome submissions on this issue and we refrain from making a tentative proposal at present.

V. TENTATIVE PROPOSALS

7.24 An impartial tribunal Is fundamental to our system of criminal justice. To avert prejudice, the Commission considers that the following additional measures should be taken.

1. Judges should request Crown counsel to outline for the jury panel the nature of the case and the identity of the accused and likely witnesses. The judge should request people who feel they would be unable to give impartial consideration to the case to come forward (paragraph 7.6).

2. The court officer responsible for the jury should the required to take an oath when being put in charge of the jury, undertaking to shield the jury from outside influences (paragraph 7.9).

3. Pre-trial hearings should be used, where possible, to resolve disputes as to the admissibility of evidence, both to avoid interrupting the trial with voir, dires for this purpose and to reduce the risk that the jury will hear inadmissible evidence (paragraph 7.15).

4. Where there has been substantial pre-trial publicity, the judge should invite people who feel they have been prejudiced by this to apply to be excused (paragraph 7.16).

7.25 This Chapter has raised other issues about which we make no tentative proposals. They are:

• whether trial judges should, at their discretion, allow a trial which has been affected by the publication of prejudicial material to continue to its conclusion (instead of discharging the jury) on the understanding that a verdict of guilty would be quashed because of the irregularity (paragraph 7.9);
• whether, with the consent of the accused, trials marred by overwhelming prejudice should be permitted to continue to their conclusion on the condition that, if a conviction results, the prejudice will be a ground of appeal (paragraph 7.9);
• whether judges should be empowered to order that members of the social or peer group of the accused should be included on the jury (paragraph 7.12.);
• whether the judge’s instruction limiting the use to which prejudicial information can be put is a sufficient guarantee that the jury will not be prejudiced (paragraph 7.15);
• whether the contempt laws in relation to the publication of material likely to prejudice a jury are adequate and appropriate (paragraphs 7.21-7.22); and
• whether, in cases where pre-trial publicity has been extremely prejudicial, the accused should be entitled to apply for trial by a judge sitting without a jury (paragraph 7.23).

1. A. Dickey, “The Jury and Trial by One’s Peers’’ (1973-1974) 11 University of Western Australia Law Review 205, at p.223.

2. R. v. List [1965] 3 All E.R. 710, at p.711; MacPherson v. The Queen (1981) 147 C.L.R. 512.

3 Attorney-General v. English [1982] 2 All E. R. 903, at p. 9

4. King v. The Queen [1969] 1 A.C. 304, at p.319; Reg. v. Murphy [1965] N.I.L.R. 138, at p.149, per Lord MacDermott.

5. [1985] Reform 120.

6. Justices Act, 1902, s.41.

7. Law Reform Commission of Western Australia, Report on Exemption from Jury Service (Project No.71, 1980), at p.44.

8. R. v. Makow (1974) 20 C. C. C. (2d) 513; R v. Hubbert [1977] 2 S.C.R. 267; R v. Alward [1978] 1 S.C.R. 559.

9. Duffus v. Collins (1966) 83 W.N. (Pt. 1N.S.W.) 399, at p.402, per McClemens J.

10. Practice Note [1973] 1 All E.R. 240.

11. Reg. v. Pennington [1985] Crim. L.R. 394.

12. Jury Act, 1977, s.40(1).

13. Juries Act 1957 (WA), s.55; Juries Act 1962 (N.T.), s,55; Juries Ordinance 1967 (A.C.T.), s.43.

14.R. v. Box [1963] 3 All E. R. 240; R. v. Stretton; R. v Storey.[1982] V.R. 251. But see R v. Boland [1974] V.R. 849 and Antonio Zampaglione and Others [1982] 6 A. Crim. R. 287 where the juror was not discharged because the threat did not make him impartial.

15. R. v. Hood [1968] 2 All E. R. 56; R. v. Stretton; R v Storey [1982] V.R. 251; R v Sawyer (1980) App. R. 283; R v Spencer and Smails [1985] 1 All E.R. 673. But see R. v. Hill, NSW Supreme Court, Court of Appeal, 28 February 1980 (unreported), where the whole jury should not have been discharged because the jurors offered the bribe had not communicated this fact to the other jurors.

16. R. v. Booth [1983] 1 V.R. 39.

17. Thompson v. R. [1962] 1 All E.R. 65; R v Brown (1907) 7 S.R. (N.S.W.) 290.

18. R v Grant and Lovett [1972] V.R. 423.

19. A. Dickey, note 1 above, at p.211.

20. A. Dashwood, “Juries in a Multi-racial Society” [1972] Criminal Law Review 85, at p.94.

21. Duffus v Collins (1966) 83 W.N. (Pt.l) (NSW) 399, at p.402 per McClemens J.

22. J.A. Scutt, “Trial by a jury of one’s peers?” (1982) 56 Australian Law Journal 209.

23. R v Broderick [1970] Crim. L.R. 155.

24. John Pierre Vaquier ( 1924) 18 Cr. App. R. 112; Margaret Ann Sutton (1968) 53 Cr.App. R. 128.

25. P. Healy, “Jury to be drawn from Asian area” , The Times 5 November 1984, at p.3.

26. Halsbury’s Laws of England (4th edition, 1976),Vol. 11 , para. 369, citing Makin v. Attorney General for New South Wales [1894] A.C. 57 and Thompson v. R [1918] A.C. 221. See also Crimes Act, 1900, ss.411-413k Markby v. The Queen (1978) 140 C.L.R. 108; Driscoll v. The Queen (1977) 137 C.L.R. 517; Reg v McKeon (1961) 78 W.N. (N.S.W.) 798; Stephens v. The Queen, High Court of Australia, 18 April 1985 (unreported).

27. Callis v Gunn [1964] 1 Q.B. 495, at p.501, per Lord Parker C.J.

28. R v Lee [1950] A.L.R. 517; King v R [1969] 1 A.C. 304.

29. Cross on Evidence (2nd Australian Edition, 1979), at p.30.

30. R v Featherstone [1942] 2 All E.R. 672; R v Parsons [1962] Crim. L.R. 631; R. v. Weaver [1968] 1 Q.B. 353; R. v. Palin [1969] 3 All E.R. 689; R. v. Ball [1961] S.R. (N.S.W.) 37.

31. Winsor v R (1866) L.R. 1 Q.B. 390, per Erle C. J., at p.394; R. v. Boland’ [1974] V.R. 849; Peter Vaitos (1981) 4.A. Crim. R. 238.

32. The Queen v. Storey and Another (1978) 140 C.L.R. 364; Prestage v. The Queen [1976] Tas. S.R. 16; The Queen v Duvivier (1982) 29 S.A.S.R. 217; R. v. McKittrick [1980] V.R. 637; R v Matusevich and Thompson [1976] V.R. 170. Compare R v Sarek [1982] V.R. 971; R v Knape [1965] V.R. 469; William Pickham (1935) 25 Cr. App R. 125.

33. R v Boland [1974] V.R. 849, at p.866.

34. A.N. Doob and H. Kirshenbaum, “Some Empirical Evidence on the Effect of 5.12 of the Canada Evidence Act upon the Accused” (1973) 15 Criminal Law Quarterly 88.

35. Discussion Paper, Procedures Before Trial, Chapter 9.

36. Supreme Court Rules, 1972, Part 75, Rule 11(4)(a).

37. Crimes Act, 1900; s.577.

38. See the comments attributed to White J in the trial for murder of Bevan Von Einem, “Discard what you have heard, judge tells jury”, Advertiser 16 October 1984.

39. Ibid. See also para 7.6.

40. The Queen v. Sherrin (1978) 20 S.A.S.R. 164.

41. Duffus v The Queen (1979) 39 F.L.R. 315.

42. Crimes Act, 1900, s.577.

43. R v Cattell [1968] 1 N.S.W.R. 156.

44. Id., per Sugarman J.A., at p.157. See also Holmes J.A., at p.159.

45. R v Dorrington [1969] 1 N.S.W.R. 381.

46. R. v. Rushbrook [1974] 1 N.S.W.L.R. 699.

47. Supreme Court Rules, 1972, Part 75, Rule 11(4)(a).

48. Parashuram Detaram Shandasani v. King Emperor [1945] A.C. at p.266, per Lord Goddard C.J.; A-G v. Mirror Newspapers Ltd. [1962] S.R. (N.S.W.) 421, at p.423.

49. R. v. Parke [1903] 2 K.B. 432; R v Davies [1906] 1 K.B. Re Thomas [1928] S.A.S.R. 210; A.G. v. Willesee (1980) 2 N.S.W.L.R. 143.

50. R. v. Thomson Newspapers Ltd. , ex parte A.G. [1968] 1 All E.R 268; Maher v. Carson and William, (1920) 22 W.A.L.R. 81.

51. R. v. Clarke, ex parte Crippen (1910) 103 L.T. 636; A.G. v. John Fairfax and Sons Ltd. [1980] 1 N.S.W.L.R. 362. In Canada the publication of an alleged admission or confession made at the pre-trial stage is an offence until. the accused is discharged or the trial is completed: Criminal Code 1970 (Canada), s.470(2).

52. R v Odhams Press Ltd, ex parte A..G. [1957] 1 Q.B. 73; A.G. v. John Fairfax and Sons Ltd, [1980] 1 N.S.W.L.R. 362; R. v: Pacini [1956] V.L.R. 544.

53. R. v. Bottomley, The Times 19 December 1908 R v McCreadie (1899) 16 W.N. (N.S.W.) 110.

54. R v Labouchere, ex parte Columbus Co Ltd. (1901) 17 T.L.R. 578.

55. R v O’Sullivan [1969] W.A.R. 142.

56. R v Payne [1896] 1 Q,B. 577; Packer v. Peacock (1912) 13 C.L.R. 577; James v. Robinson (1963) 109 C.L.R. 593.

57. R v Gra.y (1865) 10 Cox C.C. 184; R v Kray(1969) 53 Cr. App. Rep. 412; Ex parte Kear; consolidated Press Ltd (1954) 54 S.R. (N.S.W.) 95.

58. Mr. Justice David Hunt, “Why No First Amendment? The Role of the Press in Relationship to Justice” (1980) 54 Australian Law Journal 458.

59. Peter Vaitos (1981) 4 A. Crim. R. 238, at p.245, Per,, Young C.J.

60. Australian Law Reform Commission, Reform of Contempt Law, (Issues Paper No.4, January 1984), at p.14.

61. Omitted from the reported judgment but quoted in Reg v Munday, Supreme Court of N.S.W., Court of Criminal Appeal, 29 November, 1984, unreported, per Street C.J. See also R. v. Hemming [1985] Crim. L.R. 395.