4.1 In this Chapter, a number of important, but miscellaneous, aspects of the test for liability for sub judice contempt are reviewed. In this regard, the following issues are examined:

• whether the test for liability can and should be reformulated in a way to make it clearer and more limited in scope; in particular, whether it would be better formulated in terms of risk rather than tendency;
• whether the test should include possible influence on a witness and/or a judicial officer as a basis for liability; and
• whether particular categories of publications should be specified as either giving rise to liability or making out the range of potential liability.

CURRENT TEST FOR LIABILITY: TENDENCY

4.3 In Australia, the test for determining whether a publication is prejudicial so as to infringe the sub judice rule is formulated in terms of “tendencies”. To amount to contempt, a publication must be shown to have a real and definite tendency, as a matter of practical reality, to prejudice or embarrass particular legal proceedings.¹ The prosecution bears the burden of proving the necessary tendency, beyond a reasonable doubt.

4.4 It is clear from this formulation that liability depends on the potential effect of a publication on legal proceedings, rather than any actual effect it may have had. Consequently, the prosecution in contempt proceedings is not required to prove that any prejudice to a case in fact occurred as a result of media publicity, but merely that the publicity had the potential to cause such prejudice. The court assesses tendency by examining the nature of the publication and the circumstances surrounding it, as they appeared at the time of publication. It should not have regard to later events, such as that the relevant proceedings were not in fact affected by the publication because the accused died before the trial or elected at the trial to plead guilty.²

4.5 It should be noted that, while the tendency test operates as the substantive principle of liability for sub judice contempt, there is another principle of liability which may apply specifically to publications concerning civil proceedings. This is commonly known as the “prejudgment principle” and applies in addition to the tendency test as a means of assessing the liability of a publication for sub judice contempt. The Commission discusses the prejudgment principle, in the context of the operation of contempt law to protect civil proceedings, in Chapter 6.

CRITICISMS OF THE TENDENCY TEST

4.6 The tendency test has been a central focus of criticism by commentators on the sub judice rule.³ There are two principal grounds for criticism: first, that the test is imprecise and unclear, and secondly, that it is too broad. A main issue for review in this chapter, therefore, is whether the substantive test for liability needs to be defined in a way which is more precise, clearer, and more limited in its application.⁴

Imprecision

4.7 Precision and clarity are important to the fair operation of the criminal law. A criminal offence should be defined with sufficient precision to allow members of the public to know, with a satisfactory degree of certainty, the conduct that will expose them to criminal liability. The limits of liability should be sufficiently clear to the public to allow them to regulate their conduct in order to avoid attracting liability. These are regarded in some jurisdictions as essential principles of justice, with the consequence that, if a criminal offence is too vague or difficult to apply, it may violate these fundamental principles and therefore be invalid.⁵ Sub judice contempt is generally regarded as imposing criminal liability. It attracts criminal sanctions, potentially the imposition of a term of imprisonment. It therefore follows that the principles of liability governing this offence should be defined with sufficient precision and clarity as is necessary in the interests of fairness.

4.8 Critics of the “tendency test” have asserted that “tendency” is a very vague and general notion on which to base liability, and that it is impossible to know whether a particular statement, if published, will be found to have a tendency to prejudice proceedings. Of course, absolute certainty in the limits of liability is not necessary for the fair operation of an offence. The question is whether the tendency test provides sufficient guidance to allow the media to regulate their activities in order to be reasonably certain of avoiding liability.

4.9 In the interests of protecting freedom of discussion, the test for liability for sub judice contempt should apply to restrict publication of information only to the extent that is necessary to ensure the proper administration of justice. If the test for liability is too broad in its application, it may be criticised for intruding unjustifiably on freedom of discussion. The current test may be criticised for setting too low a threshold for liability, by requiring no more than a “tendency” to prejudice. As a result, publications may be prohibited which have a tendency to prejudice but which do not pose any serious risk to the administration of justice. As well, if the tendency test really is unclear, it may result in the media being overly cautious in publishing material. This may also result in an unnecessary intrusion on freedom of discussion.

REFORMULATING THE TEST: TENDENCY VERSUS RISK

“Substantial risk” as an alternative formulation

4.10 The majority of judges in Australian cases have adopted the “tendency” formulation as the test for liability for sub judice contempt. This formulation has not, however, been universally favoured. Chief Justice Mason of the High Court preferred a formulation drafted in terms of “risk” rather than “tendency”. According to this formulation, a publication amounts to a contempt if it is shown to have a substantial risk of serious, or real, interference with particular legal proceedings.⁶ A small number of judges have followed Chief Justice Mason’s approach in preference to the tendency approach.⁷

4.11 Chief Justice Mason favoured the “substantial risk” formulation because, in his view, it balanced more appropriately the competing interests in free speech and the administration of justice. He considered that the “tendency” formulation was vague and uncertain, and may be seen to give too much weight to the protection of the administration of justice over freedom of speech. However, he noted that the proviso in the “tendency” formulation, that the tendency to interfere be a matter of practical reality, may be sufficiently clear as to eliminate his objection to that formulation.

4.12 A “substantial risk” test has been adopted in legislation in the United Kingdom as the test for liability for sub judice contempt.⁸ The legislation provides that a publication will amount to a contempt if it creates a “substantial risk” that the course of justice will be “seriously impeded or prejudiced”. In New Zealand, the courts appear to favour a test that focuses on whether the publication created a “real risk”, as a matter of practical reality, that the trial would be “likely” to be prejudiced.⁹ The Canadian courts also appear to determine liability for sub judice contempt according to whether there was a “real risk” of prejudice to the course of justice.¹⁰

Differences in the meaning of “tendency” and “substantial risk”

4.13 In considering a reformulation of the test for liability, it is obviously important to identify the differences in meaning, if any, between the “tendency” and the “substantial risk” formulations. Chief Justice Mason considered that there may be no substantive difference between the two, and the courts have at times seemed to use both interchangeably.¹¹ Is there, therefore, any real difference in meaning between the two formulations? In particular, does one present a more precise and clear test for liability? Does one impose a higher threshold for liability, making the scope of contempt more limited in prohibiting publications?

4.14 The courts have not spelt out what they understand by the term “tendency”, although they have made it clear what the term does not mean, namely, it does not mean proof of any actual prejudice, and it does not require any intention on the part of the publisher to cause prejudice.¹²

4.15 The Macquarie Dictionary defines “tendency” as a “prevailing disposition to move, proceed, or act in some direction or towards some point, end or result”.¹³ The word “tendency” therefore seems to imply a degree of likelihood or possibility that a certain result will eventuate. In the context of contempt law, this is a degree of likelihood or possibility that prejudice will result from a publication.

4.16 A publication will have the necessary “tendency” if, from its nature, as distinct from its actual effect in the specific circumstances, it might have an effect on the relevant proceedings.¹⁴ The New South Wales Court of Appeal has noted that the degree of likelihood required by the word “tendency” in this context is not one of probability, but rather a “real possibility” of interference,¹⁵ and the High Court has said that the degree of possibility required by the test must be more than a remote possibility that justice will be interfered with.¹⁶

4.17 However, the courts have not expressly addressed the precise degree of possibility that is required by the term “tendency”, other than that it must be more than remote. The only guidance given is the qualification that the tendency must be real and definite, and must exist as a “matter of practical reality”. It may be argued that this implies a degree of possibility that is something greater than simply “not remote”. President Kirby (as he then was), in considering the words “practical reality”, has commented that the courts must beware of over-sensitivity to the mere possibility of interference in a criminal trial.¹⁷

4.18 It may be worth noting that the “tendency” formulation, as it is most commonly articulated by the courts, makes no reference to any requirement for “serious” prejudice, but simply requires a tendency to prejudice, or embarrass, proceedings.

4.19 The word “substantial” in “substantial risk” would seem to require a higher degree of likelihood than one which is simply more than remote. Certainly, the parliamentary debates leading up to the introduction of the legislation in the United Kingdom suggest that its drafters intended the word to mean something which is serious, considerable, and real, imposing a high threshold on liability for sub judice contempt in order to restrict its intrusion on freedom of expression.¹⁸ However, the English courts seem to have given a broader interpretation to the word “substantial”, choosing to define it more in terms of what it is not, than what it is. It has been said that “substantial” as a qualification of risk does not mean “weighty”, but rather means “not insubstantial” or “not minimal”.¹⁹ On other occasions, “substantial” has been said simply to exclude a risk that is only remote.²⁰ While it is not clear exactly what level of risk will generally be considered by the English courts to be substantial, it could be argued that the interpretation of the term “substantial” as excluding a remote or minimal risk allows for liability to arise from a smaller risk of prejudice than was originally suggested by the drafters of the legislation.²¹ The English courts have qualified their interpretation of the term “substantial” to the extent that they have said the risk must be practical and not theoretical.²²

4.20 It is not clear how the Australian courts would interpret the phrase “substantial risk”. In the context of reviewing a claim by an accused person that his or her trial was unfair and subsequent conviction was unsafe because of prejudicial media publicity, the Australian courts have seemed willing to allow for some degree of risk of prejudice to a trial without finding that the proper administration of justice has been compromised. The High Court has noted that some degree of risk to the integrity of criminal justice is accepted as a price which must be paid to allow a degree of freedom of public expression.²³ It could be argued from this that the Australian courts would be more willing to interpret the term “substantial risk” in a way which required a higher degree of risk than seems currently to be required by the courts in the United Kingdom.

4.21 It may also be worth noting that the “substantial risk” formulation, as articulated in the English legislation and by Chief Justice Mason, refers to a risk of “serious” or “real” interference. This contrasts with the tendency formulation which, as noted in paragraph 4.17 above, makes no such reference to any particular degree of prejudice required. The Australian courts do not appear to have placed any emphasis on the difference between the two formulations in this regard. It has been noted in the United Kingdom, however, that the requirement of “serious prejudice” demands separate consideration from the issue of whether there is a substantial risk, there being two limbs to the test for liability. Different factors may be relevant in assessing whether there was serious prejudice from whether there was a substantial risk.²⁴ On the other hand, the Australian Law Reform Commission (“ALRC”) expressly rejected the requirement in the English legislation that there be shown to be a substantial risk of “serious” prejudice, preferring instead to include within the scope of liability a substantial risk of any prejudice, whether serious or not. It took the view that to require a substantial risk of serious prejudice placed too heavy a burden on the prosecution seeking to establish contempt.²⁵

Recommendations of law reform bodies

4.22 The ALRC, the Phillimore Committee in Great Britain, and the Irish Law Reform Commission all recommended a test for liability which was formulated in terms of risk, as opposed to tendency.

4.23 The ALRC expressly noted its preference for a “substantial risk” formulation over a “tendency” formulation. It considered that the “tendency” formulation was vague and too wide in its application, with the consequence that it imposed an excessively broad prohibition on media publicity.²⁶ It recommended a general principle of liability in the following terms: a publication must create a substantial risk that, by virtue of the influence it might exert on the court or jury, a fair trial might be prejudiced.²⁷ In addition, it recommended that, in relation to publicity about criminal jury trials, only publications within legislatively defined categories be capable of giving rise to liability for sub judice contempt. That is, in respect of a publication relating to a criminal jury trial, liability for contempt would only be found if the publication both came within one of the legislatively defined categories and was considered to create a substantial risk of prejudice. These recommendations were subsequently endorsed by the Victorian Law Reform Commission.²⁸

4.24 In the United Kingdom, the Phillimore Committee recommended that, to amount to a contempt, a publication must create a risk that the course of justice will be seriously impeded or prejudiced.²⁹ The Committee did not qualify the degree of risk required, but placed emphasis instead on the severity of the prejudice as the key element to liability. This contrasts with the formulation recommended by the ALRC, under which liability does not arise unless there is a “substantial” risk. The Phillimore Committee took the view that the creation of a risk of serious prejudice should always be prohibited, without any qualification that the risk be substantial. However, under the Contempt of Court Act 1981 (UK), which adopted most of the recommendations of the Phillimore Committee, the test for liability requires a “substantial” risk of prejudice.³⁰ The Parliament of the United Kingdom considered it desirable to include “substantial” in the legislation to ensure that interference with freedom of expression occurred only to the extent that was absolutely necessary to preserve the proper administration of justice.³¹

4.25 The Irish Law Reform Commission recommended a test for liability which followed the legislation in Great Britain.³² That is, liability should arise where the publication creates a substantial risk that the course of justice will be seriously impeded or prejudiced. Originally, the Irish Law Reform Commission had proposed that the principle for liability should require merely a risk “other than a remote one”.³³ It later recommended that this be changed to a “substantial risk”, having concluded that a higher threshold for liability was necessary to protect freedom of expression.

Formulating liability in terms of possible not actual prejudice

4.26 It has on occasions been argued that the principle of liability for sub judice contempt should focus on whether prejudice to proceedings has actually occurred, rather than whether it may possibly occur.³⁴ By punishing for the mere possibility of prejudice, rather than actual prejudice, it may be argued that the scope of liability is too broad. For example, a publication condemning a particular accused may be found to amount to contempt for having a tendency to prejudice proceedings when, in fact, it is clear that actual prejudice did not arise, or was not compelling, because the jury acquitted the accused. It may be questioned whether, in such a case, a publication should attract liability.

4.27 At this stage, the Commission does not agree that liability for sub judice contempt should be limited to cases where actual prejudice to proceedings can be proven. The principal aim of the law in this area is to prevent publications that may damage the administration of justice before any actual damage is done. It is therefore necessary to frame liability in terms of the likelihood of prejudice, rather than punish after prejudice has occurred, in order to deter the media from publishing prejudicial material, and encourage them to exercise proper care in carrying out their business. The analogy has been given of legislation regulating industrial safety and road safety.³⁵ Employers and drivers may be punished for maintaining an unsafe workplace or driving unsafely, even though no-one sustains an injury. In this way, the law imposes a positive duty to prevent injury from arising, rather than waiting for injury to occur.

4.28 It is a separate issue whether evidence of actual prejudice, or alternatively, evidence that no prejudice has occurred, should be considered relevant in determining whether a publication creates the necessary risk of prejudice. For example, it may be questioned whether the courts should take into account evidence that the jury in the relevant trial did not actually encounter the relevant publication, or evidence that the trial judge decided not to discontinue the trial despite the media publicity. This is an issue which the Commission considers in more detail in paragraphs 4.77-4.80 below.

The Commission’s tentative view

4.29 The Commission takes the tentative view that a test for liability based on “substantial risk” is preferable to one based on “tendency”. Because of the restrictions that the sub judice rule places on freedom of discussion, it is important that its scope is limited as much as possible, so that it applies only where it is necessary to ensure that the proper administration of justice is not seriously compromised. It is also desirable that the test for liability be formulated in the most precise terms possible, in order that the media may know with a reasonable degree of certainty which publications will expose them to prosecution. “Substantial risk” is a more precise term than “tendency” since it quantifies the degree of risk by use of the word “substantial”.

4.30 The Commission acknowledges concerns that the “substantial risk” test may at times have been interpreted by the English courts to impose a lower threshold for liability than was originally intended. However, the Commission is not convinced, at this stage at least, that this will be the experience in New South Wales.

4.31 The Commission also takes the tentative view that the test for liability should require a substantial risk of “prejudice”, rather than a risk of “serious prejudice”. Prejudice to the fairness of legal proceedings is, by its nature, serious. In the context of a fair trial, there are not degrees of prejudice. The Commission cannot imagine a situation in which there could be, for example, a risk of “trivial” prejudice to the fairness of the proceedings. The adjective “serious” therefore adds nothing in real terms to the test for liability.

4.32 Proposal 3 reflects the Commission’s tentative view on an appropriate formulation of the test of liability in terms of “substantial risk of prejudice”.

PUBLICATIONS THAT MAY INFLUENCE WITNESSES

4.33 Contempt law assumes that witnesses, as well as jurors, are susceptible to influence by media publicity (whether they be witnesses in civil or criminal proceedings). It is feared that media publicity may deter a witness from coming forward to give evidence, or may influence the evidence that witness gives, either consciously or subconsciously.³⁶ Consequently, the law restricts the publication of material if it is considered that it will have such an effect.

4.34 It is worth noting, however, that at common law Australian courts appear to have become increasingly reluctant to restrict the publication of information on the basis that it may influence a witness in civil proceedings. One issue that arises in considering the test for liability is whether liability should continue to be imposed on the basis of possible influence on a witness in proceedings, or whether the risk to the administration of justice in such a case is not sufficient to justify retaining influence on a witness as a ground for restricting the publication of information.

4.35 The courts seem now to place greater faith in the honesty of witnesses and the power of cross-examination to expose prejudice and inconsistencies.³⁷ In one case, three judges of the High Court considered that it was “no more than speculation” to suggest that a potential witness in the relevant civil proceedings would be influenced.³⁸ In a more recent case, the New South Wales Court of Appeal acknowledged that there may be circumstances where a publication created a real and substantial risk of adversely influencing witnesses or potential witnesses, particularly where the publication included interviews with witnesses which may cause their memory of events to be distorted.³⁹ However, in the circumstances of that case, the court did not consider that there was any such risk and found that the radio broadcast in question did not amount to a contempt. The witnesses who were interviewed were either expert witnesses or eyewitnesses of the accident in question, and their testimony, it was claimed, would be unlikely to be affected. Expert witnesses in particular were considered to be less susceptible to influence by media publicity.⁴⁰

Categories of possible influence

4.36 Publications have been found to constitute contempt on the basis that they influence a witness in one of the following ways:⁴¹

(1) They criticise a potential witness.⁴² The courts have expressed concern that a witness may be reluctant to give evidence, or may alter the evidence which he or she gives, if that witness is subjected to personal criticism by the media.

(2) They criticise one of the parties to the proceedings.⁴³ It is considered that public criticism of a party to proceedings may make a potential witness reluctant to support that party by giving evidence in court, for fear of encountering similar criticism.

(3) They contain an interview with a witness on matters to which that witness, or another witness, will subsequently testify in court.⁴⁴ The courts have expressed concern that witnesses’ testimony may be influenced by the fact of the earlier publication, to the extent that they may be determined to make sure their evidence is consistent with their previous statements to the media. Moreover, other witnesses may modify their own testimony in light of the publication. Potential witnesses may also be reluctant to come forward as witnesses as a result of the publication. The potential for a witness’ testimony to be distorted because of a previous media interview may increase if the witness has been offered money for the interview.⁴⁵

(4) They contain material which may in some way influence the testimony of a witness who is to give an eyewitness account of the incident forming the basis of the proceedings. In criminal proceedings, an example is the publication of a photograph of the accused, when the witness is to give evidence concerning the identity of the offender. In civil proceedings, an example is a television re-enactment of an accident of which the witness is to be called to give an eyewitness account.

4.37 These categories of possible influence on a witness appear to be based more on the courts’ own views about the susceptibility of witnesses to media publicity, according to their experience and assumptions about human behaviour, rather than on empirical data. As with much of this area of the law, there appears to be little empirical or psychological evidence to test the validity of the courts’ assumptions.

4.38 Psychologists have made general observations about the malleability of memory. In particular, studies have suggested the potential for memory to be embellished and even transformed by new information received after an event,⁴⁶ although views differ on the ways in which and degree to which memory might be affected, especially where the event in question is out of the ordinary.⁴⁷ Psychologists’ observations do at least offer some support to restricting the publication of material that may have an effect on a witness’s recollection of events. However, they are not relevant to testing the assumption that a witness may be deterred from giving evidence because of public criticism of a party or of the witness, or because of previous statements made by that witness or another witness (except to the extent that those previous statements may have an effect on a witness’ recollection of events).

4.39 For the publication to infringe the sub judice rule, the risk of influence must be shown to be more than merely “speculative”.⁴⁸ There must be a “real and substantial risk of adversely influencing actual or potential witnesses”.⁴⁹ Justice Kirby has noted that “the danger of this occurring is more acute where the witnesses themselves are interviewed in advance of a hearing”.⁵⁰ However, in that situation, the English courts have drawn a distinction between the impact of the publication on expert and non-expert witnesses. The courts have suggested that non-expert witnesses might be more likely than expert witnesses to be influenced by advance knowledge of the evidence of their fellow-witnesses.⁵¹

Arguments for and against restrictions by reason of possible influence on a witness

4.40 On the one hand, there is arguably sufficient ground to fear that the fairness of legal proceedings may be compromised by media publicity, on the basis of prejudice to a witness. There does at least seem to be a basis for concern that a witness’ memory of events may be coloured by publicity. Whether a potential witness might also be deterred from giving evidence because of media publicity is a question for which there does not appear to be a clear and decisive answer. Arguably, there is at least the possibility that media publicity will have such an effect.

4.41 On the other hand, the following arguments may be made against restricting publications on the basis that they may influence a witness in proceedings. First, it could be argued that there is nothing special about the influence exerted on a witness by media publicity as opposed to influence by any other means. There may be just as much danger that a witness’ testimony will be influenced by discussion of the proceedings with family or friends, or by having made a previous statement on the same facts to police or to solicitors, or by having been exposed to public discussion or debate about the general matters to which the proceedings relate and which distort that witness’ attitude towards the proceedings or the parties. It could be questioned why the law considers it necessary or desirable to prevent the risk of influence by one means, namely media publicity, while there are many other ways in which a witness, or potential witness, may be influenced.

4.42 Secondly, it could be argued that the possibility of influence on a witness, whether by media publicity or other means, is a matter which may be fully explored and exposed through cross-examination in court. To this extent, it may be said that the risk to proceedings created by media influence on a witness is less significant than the risk created by media influence on jurors. There is much less scope to expose a juror’s bias through questioning.

4.43 Thirdly, it may be argued that fears that potential witnesses will be deterred from giving evidence are speculative and not sufficiently substantiated to warrant intruding on the media’s right to freedom of discussion through restrictions on publishing information about proceedings.

Recommendations of law reform bodies

4.44 Previous reviews of the law of contempt have considered the restrictions imposed on the media to prevent influence to a witness. The Phillimore Committee in the United Kingdom noted the risks that may arise from media interviews with potential witnesses, but made no specific recommendation for legislative reform to address the issue.⁵² A previous committee in the United Kingdom, which reviewed the law of contempt as it affected tribunals, made a recommendation to the effect that it should be a contempt for any person to say or do anything or cause anything to be said or done, in relation to evidence relevant to the subject matter before the tribunal, which was intended or obviously likely to alter, distort, destroy, or withhold such evidence from the tribunal.⁵³

4.45 The Irish Law Reform Commission recommended the creation of a new offence relating specifically to the payment of witnesses by the media for interviews.⁵⁴ It proposed that it be an offence to make or offer payment to any person who is, or is likely to be, a party or a witness in legal proceedings (whether civil or criminal) where, in the particular circumstances, the making or offer of such payment creates a substantial risk of injury to the administration of justice.

4.46 The ALRC made a general recommendation⁵⁵ that sub judice restrictions should not be imposed on publications relating to civil proceedings which are heard by a judge alone. While it recognised the possible danger of influence to a witness, it took the view that this possibility did not justify restricting the publication of information unless it could be established that a jury may also be influenced. It therefore recommended that publications relating to civil proceedings in which a jury was not sitting should not amount to contempt, unless it could be shown that there was a deliberate intention on the part of the publisher to distort the evidence.

4.47 In relation to publications concerning criminal proceedings, the ALRC recommended that liability be imposed only where the risk of prejudice arose from possible influence on a jury or, in certain circumstances, on a judicial officer, but not on a witness.⁵⁶ An exception was made in respect of a publication of a photograph, sketch or description of the physical attributes of a person in circumstances from which it could reasonably be inferred that the person was charged with or suspected of having committed an offence.⁵⁷ Publications of this kind were prohibited according to the ALRC’s recommendations. The Victorian Law Reform Commission later endorsed this approach,⁵⁸ as did the Commonwealth government in its draft bill.⁵⁹

The Commission’s tentative view

4.48 The Commission’s tentative view is to retain the existing common law without modification in relation to influence on witnesses. The Commission recognises that there is not a great amount of empirical evidence either to support or oppose the notion of influence on witnesses by media publicity, and that the ALRC recommended that influence on witnesses as a possible source of risk of prejudice should largely be removed as a ground for imposing sub judice restrictions. However, the Commission considers that there is sufficient reason for concern that a witness may be so influenced, at least in so far as his or her memory may be affected by media publicity. While there are, of course, other sources of possible influence on a witness’ testimony, that does not seem sufficient justification to abolish the protection against this source of influence that is provided by the law of sub judice contempt. Proposal 3 reflects the Commission’s tentative view that influence on witnesses should remain as a possible basis for imposing liability for sub judice contempt in respect of publications relating to both criminal and civil proceedings. The Commission emphasises, however, that its views in relation to witnesses are certainly not final, and the Commission welcomes submissions on whether or not it is preferable to impose fewer restrictions than are currently imposed by the common law in relation to publications that may influence a witness.

PUBLICATIONS INFLUENCING JUDICIAL OFFICERS

4.49 In the past, it has been suggested that judicial officers may be susceptible to influence by media publicity in the same way as jurors and witnesses.⁶⁰ However, the general view of the courts now appears to be that any such influence on judicial officers will not be sufficient to amount to a “real and definite tendency” so as to constitute contempt, because judicial officers have training and experience in disregarding information that is not obtained by way of evidence admitted in court.⁶¹ This view encompasses coroners,⁶² and magistrates hearing summary proceedings.⁶³

4.50 Most law reform bodies have tended to take the view that judicial officers should generally be assumed capable of resisting any significant influence by media publicity. Despite this, they have not gone so far as to exclude altogether as a possible ground of liability for sub judice contempt the risk of influence on a judicial officer. The justification for this approach is twofold: first, it is always possible that a judicial officer may be subconsciously influenced; and secondly, it is just as important to protect the public perception of judges’ impartiality as to protect against the risk of actual bias.⁶⁴ The ALRC, however, reached a slightly different result from other law reform bodies. Although recommending that the rule apply to criminal cases heard by a judge alone,⁶⁵ it recommended that the sub judice rule should not apply to restrict the publication of information relating to civil proceedings that are tried by a judge alone.

4.51 At this stage, the majority of Commissioners supports the general assumption that judicial officers are not susceptible to any significant degree to influence by media publicity.⁶⁶ Following on from this assumption, the Commission considers that liability for sub judice contempt should not be imposed on the basis of risk of influence on a judicial officer. The Commission concedes that there is little empirical data to support or refute the assertion that judicial officers are not likely to be significantly influenced by media publicity.⁶⁷ However, in the interest of freedom of discussion, the Commission considers that a line needs to be drawn to delineate clearly the boundaries of liability for sub judice contempt. Unlike previous law reform bodies, the majority of Commissioners considers that concern about influence on a judicial officer is essentially speculative. It does not amount to sufficient justification for extending liability to restrict publications where the only possible ground of influence is influence on a judicial officer. Furthermore, this approach follows the more recent trend of the courts, referred to above, of finding that publications do not have the requisite tendency to prejudice proceedings where the basis for such prejudice is influence on judicial officers.

4.52 While the Commission takes the view that influence on a judicial officer ought not to be a ground of liability, it emphasises that a publisher should not be able to avoid liability for a publication concerning proceedings that may be heard by a jury but which, fortuitously, end in being heard by a judge alone, unless it is already known for certain that the proceedings are to be heard by a judge.

4.53 The situation where liability may be imposed because of “embarrassment” to judicial officers needs to be distinguished from the discussion above concerning influence on a judicial officer. Cases which have suggested that liability may arise because of “embarrassment” have not been concerned with the risk of influence but with protecting the integrity of the justice system from the perception of improper pressure.

4.54 There is some uncertainty for the media in determining whether they may be liable for sub judice contempt for a publication that concerns proceedings heard by a judicial officer alone on the basis that the publication “embarrasses” the judicial officer. Despite concerns expressed in some cases about “embarrassing” judicial officers, it has been held by the High Court that “embarrassment” of a court was not sufficient ground for finding liability for sub judice contempt.⁶⁸ The same view has been taken by other courts.⁶⁹ However, in a recent decision of the Victorian Supreme Court, it was held that a publication was contemptuous because it had a tendency, or was objectively likely, to undermine public confidence in the administration of justice by giving rise to a serious risk that the court (constituted by a judge sitting alone) would appear not to have been free from any extraneous influence.⁷⁰

4.55 Although the common law relating to liability for sub judice contempt because of “embarrassment” to judicial officers is by no means clear, at this stage, with one area of exception, the Commission makes no proposal to modify the law. However, submissions on the issue are invited, specifically whether legislative change to the common law in this area is either necessary or appropriate.

4.56 The exception referred to relates to the sentencing stage of criminal proceedings. In Chapter 7, in relation to determining an appropriate time to end restrictions on publishing material about proceedings, there is lengthy discussion on the influence of prejudicial material on judicial officers.⁷¹ The tentative conclusion in that chapter is that sub judice contempt should not apply to publications beyond the conclusion of the trial or hearing at first instance, except in two circumstances: when a re-trial is ordered; and in relation to the sentencing process, although in a limited way.⁷²

4.57 The latter exception addresses the concern that media comment about the sentencing of an offender may “embarrass” the sentencing judge, and may thereby amount to sub judice contempt.⁷³ The reasons for treating the sentencing process differently from other stages of legal proceedings are explained fully in Chapter 7 at paragraph 7.75 and relate to the strong discretionary element in determining a sentence. Proposal 14 suggests a limited application of sub judice liability to the sentencing process. It is proposed that legislation should prohibit publications expressing opinions as to the sentence to be passed on any specific convicted offender, whether at first instance or on appeal.

PUBLICATIONS PREJUDICING CIVIL PROCEEDINGS

4.58 Chapter 6, “Publications Relating to Civil Proceedings” examines whether the sub judice rule should apply at all to restrict the publication of information concerning civil proceedings. The discussion in that chapter is extensive and not repeated here. There is also discussion in Chapter 7⁷⁴ as to the time period during which sub judice liability should arise for publications relating to civil proceedings. Briefly, the Commission is of the tentative view that the rule should apply equally to prevent publications which prejudice civil proceedings as it does to prevent prejudice to criminal proceedings. There is one proviso to this: the restrictions imposed by the sub judice rule to prevent juries being influenced should not apply in cases where the jury is to be empanelled under s 7A of the Defamation Act 1974 (NSW).⁷⁵ Proposal 3, below, reflects the Commission’s position, explained in detail in Chapters 6 and 7.

PROPOSAL 3

A publication should constitute a contempt if it creates a substantial risk, according to the circumstances at the time of publication, that:

(a) members, or potential members, of a jury (other than a jury empanelled under s 7A of the Defamation Act 1974 (NSW)), or a witness or witnesses, or potential witness or witnesses, in legal proceedings could:


(i) encounter the publication; and

(ii) recall the contents of the publication at the material time; and


(b) by virtue of those facts, the fairness of the proceedings would be prejudiced.

4.59 Previous reviews have recommended that the principle of liability for sub judice contempt be clarified by prescribing in legislation the types of statement that may or will give rise to liability.⁷⁶ A provision to this effect could operate either as an additional requirement for liability, in conjunction with the substantial risk requirement, or, alternatively, as the sole test for liability, that is, in substitution for the substantial risk test. Following the first approach, a publication would only amount to a contempt if it included a statement which came within one of the categories of publications listed in the legislation, and was also shown to have a substantial risk (or tendency) to prejudice proceedings. Following the second approach, a publication would amount to contempt if it contained a statement which came within one of the categories listed in the legislation, without regard to the degree of risk it posed to proceedings.⁷⁷

Publications which typically give rise to liability

4.60 At present, the principle of liability for sub judice contempt requires no more than proof of a tendency to prejudice proceedings. It does not specify any particular type of publication which will automatically give rise to liability. Instead, the contents of each publication are assessed according to the facts of the particular case. Arguably, this makes it difficult for media organisations to know with any certainty whether information they wish to publish about a case will or will not be found to have a tendency to cause prejudice.

4.61 The law is not, however, completely unpredictable.⁷⁸ Based on findings in previous cases, it is possible to foresee, to some extent at least, the types of publications that will and will not typically be found to have a tendency to prejudice proceedings.

4.62 For example, it is now well established that the media may publish the “bare facts” of a case without incurring liability for contempt. These are the “extrinsic ascertained” facts to which any eyewitness could bear testimony, and include facts such as the finding of a body and its condition, the place in which it was found, the person(s) by whom it was found, and the arrest of a person accused of committing a crime.⁷⁹ This is not an exhaustive list of “bare facts”, but simply examples of the types of facts concerning a case which the media may publish without breaching the sub judice rule.

4.63 In addition, there are certain types of publications that are typically found to amount to a contempt. The media may be fairly certain that, if they publish material of this kind, there is at least a strong possibility that the publication will be found to have a tendency to cause prejudice, and so attract liability for contempt. For reasons which are explained in Chapter 2, the sorts of publications typically found to amount to contempt are those that relate to criminal trials in which a jury is, or may be, empanelled, as opposed to civil proceedings, or to any proceedings that are heard by a judge alone. The types of material typically considered to have the requisite tendency relate to:

(1) suggestions that the accused has previous criminal convictions, been previously charged for committing an offence and/or previously acquitted, or been involved in other criminal activity;⁸⁰

(2) suggestions that the accused has confessed to committing the crime in question;⁸¹

(3) suggestions that the accused is guilty or innocent of the crime for which he or she is charged, or that the jury should convict or acquit the accused;⁸²

(4) comments which engender sympathy or antipathy for the accused and/or which disparage the prosecution, or which make favourable or unfavourable references to the character or credibility of the accused⁸³ or a witness;⁸⁴ or

(5) a photograph of the accused, if, at the time of the publication, there was a likelihood that the identity of the offender would be an issue at trial (it should generally be assumed that identity will be an issue at the trial, even if an authority such as the police have suggested that it will not be).⁸⁵

4.64 Chapter 2 at paragraphs 2.45-2.49 discusses the reasons why these types of media publicity carry particular risks of prejudice to a fair trial.

Advantages and disadvantages of prescribing categories of prejudicial statements

4.65 Arguably, the main advantage in prescribing the types of statement that will or may give rise to liability is that it provides greater certainty and clarity for the media. Liability for sub judice contempt would be more precisely defined, allowing the media to be certain of the types of publications which are at least at risk of being held in contempt.⁸⁶

4.66 The degree of certainty to be achieved by prescribing categories would depend on the exact formulation of the test for liability. If liability were formulated in a way that required only that a publication come within the listed publications in order to attract liability, that is, with no additional requirement that there be a substantial risk of prejudice, then the media should be able to be absolutely certain about the limits of liability, and the types of publications which they could and could not publish without attracting prosecution. The only possible area of uncertainty in the application of this test would be in interpreting the categories to determine whether particular material was prohibited by the legislation. It would certainly be a more clear-cut test for liability than presently exists, and would appear far easier for the media to apply when faced with the daily decision whether to publish a story under pressing time constraints.

4.67 A significant disadvantage of following this approach is the restriction it imposes on freedom of discussion. There may be statements which fall within one or more of the prohibited categories, but which, in the circumstances of the particular case, do not pose a risk of prejudice to legal proceedings. It could therefore be argued that the restrictions imposed by a blanket prohibition are more than is necessary to preserve the proper administration of justice, and therefore represent an unjustifiable limitation on freedom of discussion.⁸⁷

4.68 If liability were formulated in a way that required a publication to come within the categories listed in legislation, and also to have a substantial risk of prejudicing proceedings, then the media will not have absolute certainty as to the limits of liability. The requirement of a substantial risk would demand consideration on a case by case basis as to the degree of possibility of prejudice.⁸⁸ However, the advantage of this approach is that it would not restrict the publication of information if there were not a substantial risk of prejudice to proceedings. Consequently, the media would have greater freedom to publish. Moreover, it may be argued that this approach would provide a clearer and more certain test for liability than currently exists, because the media would be certain of the parameters within which liability may arise.

4.69 A disadvantage of prescribing categories of publications, whether with or without an additional requirement to show substantial risk, is that it may prove an inflexible approach to imposing liability. There is always the danger that legislation will omit from the list a category of publication later found to have the potential to cause prejudice to proceedings. The result will be that the media will be free to publish a statement, even though it may cause prejudice to a case, and will escape liability.⁸⁹

4.70 The Australian and the Irish Law Reform Commissions had two different approaches to resolving the problem of inflexibility. The ALRC recommended that legislation prescribe, as an exhaustive list, the categories of statements to give rise to liability for contempt. It recognised the danger of omitting a statement that would later prove to cause prejudice in a particular case, but considered that this was a problem best resolved by subsequent amendment to the legislative list, if this was thought to be necessary.⁹⁰ The Irish Law Reform Commission saw the advantage in listing in legislation the types of statements to give rise to liability, but took the view that it would be too inflexible to restrict liability only to those statements. Instead, it recommended that legislation set out the types of statements that may give rise to liability as an illustrative, non-exhaustive list. That is, the list would serve only to provide guidance to the media as to the types of publications which would attract liability, but with the possibility that statements not included in the list could also attract liability if found by the courts to carry a substantial risk of prejudice to proceedings.⁹¹

4.71 Whether, in practice, there is any real danger of omitting a prejudicial statement from the list of prohibited material is a matter for debate. The Commission is not aware of any case in which contempt has been proven that has involved a publication that could not be described as falling within one of the categories listed in paragraph 4.63 above. The categories are fairly broad. For example, the prohibition against statements which engender antipathy or sympathy for the accused is broad enough to cover a wide range of statements, from a statement denouncing the accused as “hideous scum”⁹² to a statement criticising the financial and emotional cost of a trial for the accused.⁹³

The Commission’s tentative view

4.72 The Commission can see some merit in following the approach of the Irish Law Reform Commission and including in legislation, as an illustrative list only, the types of statements that, if published, may give rise to liability. A list of this kind would not be intended to be exhaustive. Statements not included within the list could still amount to sub judice contempt if they were found to create a substantial risk of prejudice to proceedings. At this stage, the Commission does not consider it desirable for legislation to prescribe exhaustively the types of statements that may give rise to liability. The obvious danger of that approach is that it may exclude from the list (and consequently from liability) statements that are later considered to create a substantial risk of prejudice. While it may be true that the case law has not revealed statements other than those listed in paragraph 4.63 as statements likely to constitute contempt, the Commission is hesitant, at this stage at least, to exclude the possibility of other statements attracting liability if they do not come within the terms of the legislative list.

4.73 The Commission is interested to receive submissions on Proposal 4 to include in legislation an illustrative list of prejudicial statements. In particular, comments on whether a list of this kind would serve a useful purpose in making the law of sub judice contempt more certain and clear are invited. As already noted, the common law already seems fairly clear as to the types of statements that will typically give rise to liability for sub judice contempt. To that extent, it is questionable whether the law is made any more certain by prescribing these statements in legislation, particularly if they are provided as an illustrative rather than exhaustive list. There is still an element of uncertainty for the media in so far as it is possible for statements not included in the list to constitute a contempt.

4.74 In the Commission’s view, the main purpose to be served in including a list in legislation is to educate members of the media and to provide them with a quick reference point for examples of the types of statements they should avoid publishing. The Commission welcomes submissions on whether it is appropriate or necessary to adopt this approach to meet this purpose rather than, or in addition to, relying, for example, on training for those who work in the media.

4.75 The categories of statements included in Proposal 4 are the types of statements that typically give rise to liability at common law, as noted in paragraph 4.63 above. In Chapter 2, the reasons why these types of statements are generally considered to cause potential prejudice to criminal proceedings are discussed. For the same reasons, the Commission considers that they should be included within an illustrative list as statements that will typically give rise to liability.

PROPOSAL 4

Legislation should set out the following as an illustrative list of statements that may constitute sub judice contempt if they also comply with the requirements set out in Proposal 3:

• A statement that suggests, or from which it could reasonably be inferred, that the accused has a previous criminal conviction, has been previously charged for committing an offence and/or previously acquitted, or been otherwise involved in other criminal activity;
• A statement that suggests, or from which it could reasonably be inferred, that the accused has confessed to committing the crime in question;
• A statement that suggests, or from which it could reasonably be inferred, that the accused is guilty or innocent of the crime for which he or she is charged, or that the jury should convict or acquit the accused;
• A statement that could reasonably be regarded to incite sympathy or antipathy for the accused and/or to disparage the prosecution, or to make favourable or unfavourable references to the character or credibility of the accused or of a witness;
• A photograph, sketch or other likeness of the accused, or a physical description of the accused.

The legislation should make it clear that this list is not exhaustive and that a statement may amount to a contempt even though it does not fall within one of the categories listed above.

4.76 Until very recently, the courts have not relied on expert evidence, such as evidence from a statistician or psychologist, to assist them in determining whether a particular publication has the requisite tendency to prejudice proceedings. Indeed, to the Commission’s knowledge, the question of the admissibility of such expert evidence was not raised until 1999, at least in New South Wales. Courts in Queensland and New Zealand have noted briefly that the question whether a publication has a tendency to prejudice a jury in a particular trial is a matter of impression for the judge hearing the contempt prosecution, and the judge may draw on his or her own experience as both counsel and judicial officer gained in the conduct of trials over years.⁹⁴ These comments certainly seem to be in line with the general approach taken by the courts in New South Wales of assessing the tendency of a publication based on impression, and judicial inferences from “common experience”, rather than with reference to any expert evidence.

4.77 On a separate point, the use of expert evidence to test whether a jury has been already tainted by publicity, as distinct from the tendency of a publication to prejudice, has been raised in the courts. In two cases, the defence lawyers, seeking leave to challenge individual jurors for cause or to obtain a temporary or permanent stay of proceedings, have attempted to introduce both empirical and expert evidence of jurors having been prejudiced by publicity.⁹⁵ In each case, this evidence was rejected on methodological grounds by the trial judge, whose decision on this point was upheld on appeal.

4.78 The general approach of the courts to assessing tendency contrasts with their approach to reviewing appeals from conviction, where the appeal is based on an argument that the jury was biased by media publicity. In the latter context, some judges have arguably appeared more willing to require, or at least consider, some kind of evidentiary basis on which to find that a jury was likely to have been biased. In one case,⁹⁶ the majority of the High Court refused to overturn a conviction on this basis, partly on the ground that the argument of bias was mere speculation, with no evidence to support it.

4.79 It appears that the past approach of the courts towards assessing tendency may be undergoing some change. In February 1999, a contempt prosecution was heard in the New South Wales Supreme Court, alleging contempt by publication in a newspaper of material relating to a man accused of a criminal offence.⁹⁷ Expert witnesses were called by the defendant to give evidence that it was statistically unlikely that the publication in question would have come to the attention of, and been recalled by, jurors hearing the accused’s trial. The expert witnesses both had qualifications in psychology, and one expert’s evidence was based largely on a survey of the effect of the publication on a selected group of readers.

4.80 While the evidence of the expert witnesses was held to be admissible, the reliability of that evidence was challenged. The court ultimately found that the expert evidence was of limited value in assessing the tendency of the publication to prejudice the administration of justice. Justice Barr considered that the assumptions on which the expert opinions were based, and the methodology used to reach those opinions, were not sufficiently close to the realities of a “real-life” jury hearing the trial to be particularly useful in determining whether the publication had the requisite tendency. In relation to the survey in particular, His Honour noted the impossibility of replicating trial conditions in a survey and the consequent difficulty in accepting survey results as a reliable indicator of what might happen at a trial. As a result, the judge reached the conclusion that the limitations on the survey in this case were so great, and the differences between the conditions of the survey and those which would apply at trial so marked, that the survey results could not form the basis for any reasonable conclusion that there was a small likelihood of the material prejudicing the administration of justice.⁹⁸

4.81 The Commission can see no reason in terms of general principle why expert opinion should not be admissible on the issue of the substantial risk of a publication to cause prejudice. Certainly, the provisions of the Evidence Act 1995 (NSW) relating to the admissibility of expert evidence appear to be sufficiently broad to admit expert evidence on this issue, provided, of course, the expert witness is considered qualified to give such evidence.⁹⁹

FACTORS RELEVANT TO DETERMINING LIABILITY

4.82 As noted in paragraph 4.3 above, whether a publication has a tendency (or substantial risk) to prejudice proceedings is an issue which must be determined objectively,¹⁰⁰ by reference to the nature and circumstances of the publication as they appear at the time of publication.¹⁰¹ At present, the courts may take into account a number of factors as relevant to determining tendency, such as the delay between the time of publication and the time of commencement of the relevant proceedings, the medium of publication, and the public status of the person making the statement.

4.83 The courts have not always been consistent or clear in their views of the extent to which some of the possible factors should be taken into account. The relevant ones are:

• the likelihood of the publication which has given rise to the proceedings coming to the attention of participants in proceedings;
• evidence that a trial has or has not been discontinued as a result of the publication;
• evidence of pre-existing publicity on the same subject matter as the publication in question;
• the availability of remedial measures as reducing the tendency of the publication to prejudice proceedings.

Likelihood of the publication coming to the attention of participants in the proceedings

4.85 One of the factors which the court must consider is the likelihood of the publication coming to the attention of participants, or potential participants, in the legal proceedings to which the publication relates.¹⁰² In relation to a publication before the proceedings have commenced, the courts have on occasion been willing to find that no liability for contempt arises, on the basis that there was no real likelihood of the publication coming to the attention of potential participants. For example, in one case involving a publication in a newspaper, the court found that the newspaper had a relatively small circulation in the area from which jurors for the relevant trial would be drawn, making it “statistically unlikely” that a potential juror in the trial would read the offending article. This was one of several factors which was found to reduce the tendency to prejudice the pending proceedings to the extent that the article was found not to constitute a contempt.¹⁰³

4.86 The attitude of the courts is less clear in respect of publications after the relevant proceedings have commenced. It has been held, in relation to a publication of this kind, that liability for sub judice contempt does not require proof that the publication actually came to the attention of participants in the trial. On the contrary, all that is required is a real, not a fanciful, possibility that the publication came to their attention.¹⁰⁴ However, the courts have appeared generally reluctant to inquire into, or attach much weight to, the likelihood of the publication coming to participants’ attention as a factor which may reduce the tendency of the publication to cause prejudice.

4.87 In several proceedings for prosecution for contempt, the court has been provided with evidence that the jury did not, or was unlikely to have, come into contact with the offending publication, yet it has nevertheless found the publisher guilty of sub judice contempt on the basis that there was a tendency to prejudice the proceedings.¹⁰⁵ In one case, for example, the trial judge had questioned the jury as to whether they had read a newspaper article relating to the trial. The judge had been satisfied with the accuracy of the jury’s response when they replied that they had not. While acknowledging this, the Court of Appeal, in finding the publisher liable for contempt, concluded that the article did have a tendency to prejudice the proceedings, even though it seemed highly likely that the jury had not in fact read it.¹⁰⁶ In another case,¹⁰⁷ in Victoria, it was held that the fact that there was no evidence that the publication came to the jury’s attention was irrelevant to the question of liability for contempt. The judge hearing the contempt charge was satisfied that there was a real possibility of the publication coming to a juror’s attention, based solely on the fact that the publication in question appeared in a daily newspaper distributed in Victoria. It is relevant to note in this context that the prosecution in sub judice contempt proceedings bears the burden of proving the necessary tendency beyond a reasonable doubt.

4.88 This apparent inconsistency may be justified on the basis that liability for sub judice contempt is concerned with the possibility of prejudice rather than actual prejudice. The sub judice rule aims to prevent damage to legal proceedings from occurring by deterring the media from publishing material which may cause damage, rather than punishing them for damage which has already occurred. To this extent, analogies have been drawn in the past between the law on sub judice contempt and laws against careless driving,¹⁰⁸ and industrial safety laws.¹⁰⁹ The aim of both is to regulate conduct in a way which requires appropriate precautions to be exercised to prevent damage or injury, and do not require proof of actual damage in order for liability to arise. Arguably, it would be undesirable for liability for sub judice contempt to rely on proof that the offending publication in fact came to jurors’ attention, with the result that a publisher of highly prejudicial material may fortuitously escape liability because the publication happened not to come into contact with participants in the relevant proceedings.

4.89 While it is true that liability for sub judice contempt focuses on tendency rather than on actual prejudice, it has been suggested that there is still scope for the court to consider the likelihood of participants actually coming into contact with the publication, and that, indeed, the qualification that the publication have a tendency “as a matter of practical reality” to cause prejudice requires the court to consider the objective likelihood, determined as at the time of publication, of participants encountering the publication in question.¹¹⁰ Indeed, a judge in a Western Australian case¹¹¹ has ruled that, to find liability for sub judice contempt, the court must be satisfied beyond a reasonable doubt that the publication might be communicated to members of the jury, as a matter of practical reality, although it is not necessary to prove a strong likelihood of this happening.

4.90 The Commission considers that it may be useful to include in the basic test for liability a separate requirement to consider the likelihood of contact by jurors, or witnesses, with the publication in question. This does not mean that liability for sub judice contempt would depend on proof of actual contact, but simply proof of a “substantial risk” of contact. In this way, the courts would be expressly directed to give consideration to the issue of risk of contact as separate from the issue of risk of influence. The existing test, framed either in terms of “tendency” or in terms of “substantial risk”, does not separate these two issues, and there is therefore the danger that the courts may blur the notions of risk of contact and risk of prejudice when determining liability. According to Proposal 3, the court would be required to consider, first, whether there was a substantial risk of contact with the publication in question and, if so, whether there was a substantial risk of prejudice arising from contact with that publication.

4.91 Following this approach, a separate requirement for the court to consider the risk of recall, that is, the risk that jurors, or witnesses, will recall the publication is included in Proposal 3. This requirement will be relevant in respect of publications that occur before the commencement of the legal proceedings in question. While the notion of risk of recall may be presently subsumed in the general notion of risk of prejudice to proceedings, Proposal 3 would ensure that the courts give separate consideration to the degree of risk of recall as opposed to the risk that the publication, if recalled, would influence the jury or witness. Proposal 3 does not limit the requirement to consider the risk of recall to publications that occur before the commencement of the relevant legal proceedings. However, for publications that occur after the commencement of proceedings, it will be usually be self-evident that there is a substantial risk of recall.

Relevance of the trial being aborted

4.92 If a trial judge considers that a publication concerning the trial is so prejudicial as to make the trial unfair, he or she may discharge the jury. The jury should be discharged if, in all the circumstances, this is necessary in the interests of ensuring a fair trial.¹¹² Discharging the jury means that the trial must stop, or be aborted, and a new trial, with a new jury, will usually be fixed to commence on some later date.

4.93 The fact that a trial has been aborted because of a publication is not considered by the courts as determinative of guilt for sub judice contempt, although it is considered relevant to the penalty to be imposed following a contempt conviction.¹¹³ By the same token, the fact that a jury is not discharged, despite the publication of material relating to the trial, does not mean that the publisher will escape liability for contempt. This is consistent with the principle noted above, that liability for sub judice contempt does not rely on proof of actual prejudice and is, in the Commission’s view the proper approach. To allow the fact that a jury has, or has not, been discharged to be determinative of the question whether the publication amounts to a contempt would be contrary to the primary concern of contempt law to prevent damage rather than require proof of actual prejudice before imposing liability. Moreover, different considerations will often be taken into account in deciding whether to abort a trial as opposed to whether a publication is contemptuous.

4.94 Although the Commission proposes that the fact that a jury has or has not been discharged should not be determinative of liability for contempt, the questions arise nonetheless whether evidence of this fact should be admissible at all in the contempt proceedings, and, if so, what weight that evidence should carry.

4.95 It was recently held in New South Wales that evidence that a trial had been aborted as a result of a publication was not relevant and was inadmissible on the issue of whether a contempt had been committed.¹¹⁴ It was found that, since the tendency of the publication must be determined objectively, by reference to the nature and circumstances of the publication, the actual effect of the publication on proceedings was irrelevant. One commentator has suggested that this ruling should not be interpreted as a statement of a general rule regarding the admissibility of evidence of an aborted trial, but rather a conclusion based on the particular facts of that case.¹¹⁵

4.96 Comments in a number of Australian cases suggest that evidence of an aborted trial is relevant to the question of liability for contempt, though not determinative of it.¹¹⁶ It has been suggested that, at the least, the fact that a trial has been aborted should be considered relevant to determining that the tendency of the publication to interfere with the course of justice was not fanciful.¹¹⁷ In one case, it was noted:

that the [television] programme was likely and had a tendency to interfere with the administration of justice … is illustrated, although of course not proved, by the circumstance that it led to the discharge … of the jury …¹¹⁸

4.98 In England, it was recently held that the fact that a trial is discontinued and the jury discharged is not determinative of liability for contempt, but is a “telling pointer” on a prosecution for contempt.¹²⁰ On the other hand, in Canada, the Court of Appeal of British Columbia has noted that there may be many reasons why a publication is found to be potentially so prejudicial as to amount to a contempt, while at the same time the trial to which it relates is allowed to continue.¹²¹ For example, issues such as the cost of aborting a trial, and the strain on witnesses, jurors, victims, and the accused of ordering a new trial, may weigh in favour of continuing the trial, despite the media publicity.

4.99 The question whether to discharge a jury is clearly different from the question whether a publication amounts to a contempt, and different considerations may concern the court in deciding each question.¹²² In deciding whether to discharge a jury following the publication of material, a trial judge must assess the effect of the publication, taking into account the nature and circumstances of the trial.¹²³ A publication, on its own, may not be regarded as creating a high risk of prejudice to a trial. However, when viewed in the light of other circumstances which have caused concern about the fairness of the trial, the cumulative effect of the publication and those other circumstances may be considered sufficient to warrant discharging the jury. In proceedings for contempt, however, the same publication may not be considered to carry a sufficiently substantial risk of prejudice on its own as to amount to a contempt, since the court in those proceedings will not have regard to the other prejudicial factors which contributed to the trial judge’s decision to discharge the jury.

4.100 Although the court in contempt proceedings would not have regard to other factors that led to a jury being discharged, it can be argued that the court can consider the actual circumstances surrounding the publication, including any finding by the trial judge of the effect of the publication on the trial. This is because liability for contempt presently requires consideration of whether there is a tendency to prejudice as a matter of practical reality, or, if the alternative formulation is adopted, whether there is a substantial risk of prejudice. In some cases, it may appear illogical that the same publication is deemed to be sufficiently prejudicial to require the discharge of the jury, but is then considered not to have a tendency to prejudice proceedings. Conversely, it may be a matter of concern if a jury’s verdict of guilty is allowed to stand, despite a finding that a publication was contemptuous because it had a tendency to prejudice the proceedings in which that verdict was handed down.

4.101 However, it is often difficult to identify the precise reasons for aborting a trial, and on that basis it may be considered unfair to take into account evidence that a trial has been aborted in determining liability for contempt. A party in criminal proceedings may have particular forensic reasons for bringing an application to the trial judge to discharge the jury. The opposing party may similarly have its own forensic reasons for not opposing that application. Moreover, in deciding whether or not to discharge the jury because of a publication, the trial judge will not have taken into account any arguments of the publisher as to the publication’s potential to cause prejudice. In response, it could be said that these are all matters which the court in the contempt proceedings may take into account in determining the weight to attach to evidence of the trial judge’s decision, and are not reasons in themselves to impose a blanket prohibition on the admissibility of such evidence.

4.102 A further difficulty concerning the relevance of the discharge of a jury to the contempt proceedings arises because the time at which the potentially prejudicial effect of a publication is assessed may differ when determining liability for contempt from when deciding whether to discharge the jury. The tendency to cause prejudice for the purpose of contempt is assessed as at the time of publication. The decision whether to discharge a jury may take into account any subsequent matters which arose after publication which increase or lessen the risk of prejudice to the trial. For example, a radio program may be broadcast at the time when the jury is sitting in court, following which they are sequestered for the night.¹²⁴ Subsequently, the trial judge may decide that there was insufficient risk of prejudice to the trial from the radio broadcast, taking into account the sequestering of the jury, to warrant aborting the trial. On the other hand, when determining the possibility for the program to cause prejudice at the time of broadcast, a court may find that the program was in breach of the sub judice rule.

4.103 It may be thought appropriate that the degree of prejudice (or threshold of risk) required for liability for contempt should be less than that required to discharge a jury in a criminal trial.¹²⁵ As noted in paragraph 4.16, at present, the courts in contempt prosecutions appear to require no more than that the tendency to prejudice proceedings was not remote or fanciful, but was “real and definite”. Arguably, the risk of prejudice which is needed to warrant discharging a jury is greater, requiring the trial judge to be satisfied that a discharge is necessary in order to protect the fairness of the trial. If this is correct, then it could be argued that where a trial is in fact aborted because of a publication, there is a stronger claim that the publication amounted to contempt, since the higher threshold of risk has been deemed satisfied (taking into account, of course, the other considerations which may have influenced the decision to discharge).¹²⁶ The argument which flows from this is that evidence that a jury has been discharged ought, therefore, to be relevant in determining liability for contempt.

4.104 On balance, the Commission is inclined towards the view that evidence of the discharge of a jury should be treated as relevant to the issue of liability for contempt and the appropriate penalty. However, although being able to rely on the fact of discharge of the jury, the prosecution would still need to prove that the publication creates a substantial risk of prejudice in order to succeed in the contempt proceedings. The findings relating to the discharge of the jury in the discontinued criminal proceedings could not be admissible to prove the sub judice contempt. Pursuant to the Evidence Act 1995 (NSW), evidence of reasons for judicial decisions is inadmissible in other proceedings, except by use of published reasons.¹²⁷

PROPOSAL 5

The fact that a trial judge has decided to dismiss, or has decided not to dismiss, a jury in a criminal trial following the publication of material concerning that trial should be admissible in the contempt proceedings as relevant to the issue of liability for sub judice contempt in respect of that publication. It should not, however, be determinative of the question of liability.

4.105 Another factor which may affect a publication’s tendency to cause prejudice is where material on the same topic has been published previously, through another source. Because of the pre-existing publicity, the current publication may be considered to be “old news”. In one case, it was held that the tendency of a publication to prejudice a trial was lessened because, among other things, its prejudicial information had already been made known to the public through previous media coverage.¹²⁸ It appears, however, that a previous publication can only be relied on as a factor lessening the tendency of a current publication if the previous publication did not itself constitute a contempt. As a matter of policy, it seems, the courts will not find a publication has less of a tendency to prejudice a trial simply because there have been previous publications which have also breached the sub judice rule.¹²⁹

4.106 The ALRC took the view that a publisher should not be able to rely on any pre-existing publicity as a factor reducing the tendency of its own publication to cause prejudice, whether it be previous publicity which was or was not itself a contempt.¹³⁰ It was said to be flawed reasoning that, because there had been pre-existing publicity, the prejudicial effect of the present publication would therefore be lessened. In fact, it has been held that, although in most cases, the influence of a later publication would become merged in the effect of previous publications, a particular publication of information may be “so dramatic as to cause the effect of that publication to persevere whereas the effect of the previous publication would otherwise have been erased by the passage of time”.¹³¹ Moreover, it was considered that it would be wrong for the law to withdraw its protection from accused persons who have been subjected to widespread adverse publicity, simply on the assumption that further adverse publicity would not make any difference to the already hostile public feeling generated by previous publicity. The law should do as much as possible to protect the fair trial of such people through appropriate restrictions imposed by the sub judice rule.

4.107 At this stage, the Commission is inclined to agree with the conclusion reached by the ALRC. A publisher should not be able to rely on the fact that there is pre-existing publicity as a basis for arguing that its publication did not have the requisite risk, or tendency. As a matter of policy, the Commission agrees that the law should not withdraw its protection from accused persons who, for whatever reason, attract a large amount of media publicity. And as a matter of logic, the Commission agrees that the prejudicial effect of a publication is not necessarily lessened because there is pre-existing publicity but, on the contrary, may serve to reinforce in the public’s minds facts and suppositions that would otherwise have been forgotten.

4.108 The common law is arguably unclear in this area, seeming to make a distinction between pre-existing publicity which is itself a contempt and that which is not. If one accepts that evidence of pre-existing publicity should not be relied on as a factor lessening the risk of a publication to cause prejudice, it would be appropriate to introduce legislation to remove ambiguities in the common law.

PROPOSAL 6

Legislation should provide that a publication is not incapable of constituting a contempt by reason only that a previous publication has already given rise to a substantial risk of prejudice to the fairness of legal proceedings.

4.109 It is arguably unclear whether the availability of remedial measures is or should be considered relevant to the question of whether a publication has a tendency, or substantial risk, of prejudice to proceedings. The term “remedial measures” refers to the measures available to minimise the possible prejudicial effect of media publicity on legal proceedings, particularly criminal trials. Remedial measures which are available in New South Wales include the power of the court to order an adjournment of proceedings or a change of venue, or to discharge the jury, the power of the prosecutor or defence to challenge for cause (that is, object to the selection of a person as a juror on the basis that that person is biased or partial), and directions by the trial judge to the jury, during the course of the trial or in summing up, to disregard publicity about the case.

4.110 The issue for consideration in the context of sub judice contempt is whether the media should be able to rely on the availability of any or all of these remedial measures to excuse them from liability for sub judice contempt, on the basis that these measures lessen the tendency, or substantial risk, of a publication to prejudice the proceedings in question. It seems that, in Australia, the courts at present do not generally recognise the availability of remedial measures as relevant to the question of liability for sub judice contempt. At the most, it has been found in some recent cases that judicial warnings to the jury can be effective in overcoming or minimising the effect of media publicity, and that fact can be given weight in determining the tendency of a publication to prejudice proceedings.¹³² However, other remedial measures, which place a greater demand on the court’s and parties’ resources, such as a change of venue, have been rejected as a basis for finding that the tendency of a publication to cause prejudice is lessened.¹³³

4.111 As noted in Chapter 2, the approach in the United States is to rely heavily on alternative remedies, such as cross-examining jurors in a “voir dire”, as a means of overcoming the risk of prejudice to the administration of justice, instead of prohibiting the publication of information by the media. In Canada, the Supreme Court has recently considered the relevance of remedial measures to the question of whether to prohibit media publications. In the case of Dagenais v Canadian Broadcasting Corp,¹³⁴ the court was asked to decide whether to impose a publication ban before the commencement of a criminal trial, on the basis that certain media publications may cause a real and substantial risk to the fairness of the trial. The court decided not to impose the ban, concluding that it was unnecessary in light of the alternative measures which were available to minimise any risk of prejudice, such as changing venues, adjourning the trial, or sequestering the jurors.¹³⁵ Of course, the Canadian courts, unlike the Australian courts, must take into account the impact of the Canadian Charter of Rights and Freedoms when dealing with matters concerning freedom of discussion and the right to a fair trial.

4.112 In England, the Queen’s Bench Division of the High Court recently considered the relevance of remedial measures to the issue of the substantial risk of a publication to cause serious prejudice.¹³⁶ The court discussed whether a substantial risk of serious prejudice could be said to arise if there is a substantial risk that the trial judge, acting reasonably, would resort to a remedial measure such as the stay of proceedings or discharge of the jury. In the end, the court appeared not to favour this approach, which based liability for sub judice contempt on whether or not there was a substantial risk of resort to a remedial measure. It was noted that one disadvantage of linking liability with resort to remedial measures in this way was that it would require the media to second-guess the responses of trial judges. As well, it may require the media to be represented before the trial judge on the question of whether the prejudice caused by the publication was sufficient to resort to the remedial measure in question, such as a stay of proceedings.¹³⁷

4.113 A proposal for the courts in New South Wales to be required to give greater weight to the availability of remedial measures in determining liability for sub judice contempt would have the potential advantage of minimising the limitations on freedom of discussion imposed by the law of contempt. However, other considerations must be weighed against that potential advantage. To require the courts to take remedial measures into account in determining tendency, or substantial risk, would be to require greater reliance on these measures as a means of overcoming the possibility of prejudice from media publicity. Greater reliance on most of these measures would be likely to involve greater expense to both the State and the accused, as well as greater delays in finalising criminal trials. In addition, there is the possibility of inconvenience, emotional upset, and hardship to the parties, witnesses, and even jurors. As noted in Chapter 2, the Commission takes the view, at this stage at least, that the availability of these remedial measures does not justify the abolition of the law of sub judice contempt. For the same reasons, the Commission does not consider that they should be factors to be given great weight in determining the tendency, or substantial risk, of a publication to cause prejudice. The exception is the availability of judicial warnings to juries to ignore certain media publicity, since this is an expedient means of reducing the possibility of prejudice, without the same potential for expense, inconvenience and hardship which arises from the other remedial measures. The courts in New South Wales already appear prepared to take judicial warnings into account in assessing liability for sub judice contempt. Consequently, the Commission does not at this stage consider it necessary to propose any legislative reform in this regard.

1. Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 34 (Wilson J), at 46 (Deane J), at 70 (Toohey J), at 88 (Gaudron J). See also Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695; Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1987) 7 NSWLR 588; Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616; Attorney General (NSW) v Dean (1990) 20 NSWLR 650; Attorney General (NSW) v Radio 2UE (NSW, Court of Appeal, No 40236/96, 16 October 1997, unreported).

2. See Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR (NSW) 596 at 598 (Jordan CJ); Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 70 (Toohey J); Director of Public Prosecutions (Cth) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 736 (Kirby P); Attorney General (NSW) v TCN Channel Nine PtyLtd (1990) 20 NSWLR 368 at 382; R v Glennon (1992) 173 CLR 592 at 605 (Mason CJ and Toohey J).

3. See S Walker, The Law of Journalism in Australia (Law Book Company, Sydney, 1989) at para 1.3.13; Australian Law Reform Commission, Contempt and the Media (Discussion Paper 26, 1986) at para 52-59; Australian Law Reform Commission, Contempt (Report 35, 1987) at para 288-295; R Pullan, “Contempt: Judicial Assertions But No Evidence” (1996) 34 Law Society Journal 48 at 49; M Chesterman, “Reforming the Law of Contempt” (1984) 58 Law Institute Journal 380 at 381.

4. This has been a central focus of review by law reform bodies in the past: see United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794,1974) at para 83, 103, 112-114; Australian Law Reform Commission, Contempt (Report 35, 1987) at para 288-295; Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.9.

5. In Canada, see United Nurses of Alberta v Attorney General for Alberta (1992) 89 DLR (4th) 609 at 636 (McLachlin J), although in this case it was held that an offence need not be codified in order to be sufficiently clear. In the context of the European Convention on Human Rights, see the ruling of the European Court of Human Rights in Sunday Times v United Kingdom [1979] 2 EHRR 245 at para 49. In the United States of America, the Due Process Clauses of the Fifth and Fourteenth Amendments of the Constitution embody a doctrine which would invalidate a law for vagueness when its prohibition is so vague as to leave an individual without knowledge of the nature of the activity that is prohibited. It has been held that a statute establishing a criminal offence must define the offence with sufficient clarity that ordinary people or persons of reasonable intelligence can understand what conduct is prohibited: see US v Erickson 75 F 3d 470 (1996); US v Gray 96 F 3d 769 (1996); US v Overstreet 106 F 3d 1354 (1997); US v Amer 110 F 3d 873 (1997); US v Sepulveda 115 F 3d 882 (1997); US v Brenson 104 F 3d 1267 (1997); State v Allen 565 NW 2d 333 (1997); State v Roucka 573 NW 2d 417 (1998); State v Groom 947 P 2d 240 (1997); State v McKnight 739 So 2d 343 (1999); US v Rahman 189 F 3d 88 (1999); Karlin v Foust 188 F 3d 446 (1999); US v Velastegui 56 F Supp 2d 313 (1999).

6. See Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 27-28 (Mason CJ).

7. See, for example, R v Day and Thomson [1985] VR 261 at 264; Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40762/91, 28 August 1992, unreported) at 3 (Priestley JA); Attorney General (NSW) v Television and Telecasters (Sydney) Pty Ltd (NSW, Supreme Court, No 11752/97, James J, 10 September 1998, unreported) at 13.

8. Contempt of Court Act 1981 (UK) s 2(2), adopting the recommendation of the Phillimore Committee: see para 4.19.

9. See Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 234; Solicitor-General v Broadcasting Corporation of New Zealand [1987] 2 NZLR 100 at 107; Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 at 569 (Richardson J).

10. See R v Chek TV Ltd (1987) 30 BCLR (2d) 36 at 43 (Anderson JA); Re Attorney General for Manitoba and Radio OB Ltd (1976) 31 CCC (2d) 1 at 6.

11. (1987) 164 CLR 15 at 28.

12. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Lane v Registrar, Supreme Court (NSW) (1981) 148 CLR 245 at 258; Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation (1982) 152 CLR 25 at 56 (Gibbs CJ); Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 46 (Deane J), at 69 (Toohey J), at 85 (Gaudron J); Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650 at 652-660 (Kirby P).

13. The Macquarie Dictionary (2nd edition, Macquarie Library, Sydney, 1992).

14. Attorney General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362.

15. Attorney General (NSW) v John Fairfax and Sons Ltd (1985) 6 NSWLR 695 at 697-698 (Samuels JA).

16. Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 56 (Gibbs CJ).

17. See Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (1992) 7 BR 364 at 371 (Kirby P).

18. See United Kingdom, Parliamentary Debates (Hansard) House of Lords, 15 January 1981 at 182-184.

19. See Attorney General v News Group Newspapers Ltd [1987] 1 QB 1 at 15 (Donaldson MR). Similarly, in a recent Canadian decision, the British Columbia Court of Appeal said that the degree of risk required to trigger liability for sub judice contempt must be more than trifling or trivial, but less than a certainty: see R v CHBC Television (British Columbia, Court of Appeal, No 24128, 8 February 1999, unreported).

20. See Attorney General v English [1983] 1 AC 116 at 141-142 (Diplock LJ); Attorney General v Birmingham Post and Mail Ltd [1998] 4 All ER 49 at 52 (Simon Brown LJ).

21. See C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 155.

22. See Attorney General v News Group Newspapers Ltd [1987] 1 QB 1 at 16 (Donaldson MR).

23. R v Glennon (1992) 173 CLR 592 at 613 (Brennan J).

24. See Attorney General v News Group Newspapers [1986] 2 All ER 833 at 841 (Donaldson MR).

25. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 317.

26. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 291, 292, 294-295.

27. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 295.

28. See Victoria, Law Reform Commission, “Comments on Australian Law Reform Commission Report on Contempt No 35” (Unpublished paper, Melbourne, 1987) at para 4.1.

29. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 113.

30. See Contempt of Court Act 1981 (UK) s 2(2).

31. See United Kingdom, Parliamentary Debates (Hansard) House of Lords, 15 January 1981 at 182-184. See the dissenting view of the Lord Chancellor, who argued that there was no real difference between a “substantial risk” and a “risk” in this context: at 183.

32. See Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 19-20. The Irish Law Reform Commission also recommended that legislation include a list of the types of publications which could give rise to liability for contempt, following the approach of the Australian Law Reform Commission.

33. See Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 309-310.

34. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 292.

35. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 259, 293.

36. See Vine Products Ltd v Green [1966] Ch 484 at 495 (Buckley J); Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25; Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540.

37. See Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 57-59 (Gibbs CJ); Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540 at 552.

38. See Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 59 (Gibbs CJ), at 103 (Mason J), at 131-132 (Wilson J), at 119 (Aickin J agreeing), at 75 (Stephen J dissenting on this point), at 176-177 (Brennan J dissenting on this point, though not expressly considering the issue of possible influence on witnesses), Murphy J did not consider this issue.

39. See Civil Aviation Authority v Australlian Broadcasting Corp (1995) 39 NSWLR 540 (Handley JA dissenting).

40. See Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540 at 552-553 (Kirby P), at 567 (Handley JA). See also Schering Chemicals v Falkman Ltd [1982] 1 QB 1 at 40 (Templeman LJ).

41. See generally, Australian Law Reform Commission, Contempt (Report 35, 1987) at para 387-395; G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 197-203; United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 53, 55-56; C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 245-246.

42. See Re Doncaster and Retford Co-operative Societies Agreement [1960] 1 WLR 1186.

43. See Hutchison v Amalgamated Engineering Union, Re Daily Worker (1932) Times, 25 August. See also Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25.

44. See Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374; Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540 (although the majority in the latter case found that, in the circumstances of the case, no contempt arose). See also United Kingdom, Home Office and the Scottish Home and Health Department, Interdepartmental Committee on the Law of Contempt as it Affects Tribunals of Inquiry, Report of the Interdepartmental Committee on the Law of Contempt as it Affects Tribunals of Inquiry (HMSO, London, Cmnd 4078, 1969) at para 31-32; United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 55-56.

45. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 56; S Pugh, “Checkbook Journalism, Free Speech and Fair Trials” (1995) 143 University of Pennsylvania Law Review 1739.

46. See, for example, L C Parker Jr, Legal Psychology: Eyewitness Testimony Jury Behaviour (Charles C Thomas, Illinois, 1980) ch 2-3; E Loftus and J Doyle, Eyewitness Testimony: Civil and Criminal (Kluwer Law Book Publishers, New York, 1987) at para 3.05.

47. See generally E Magner, “Witness Memory and the Courts” (1995) 7 Judicial Officers Bulletin 11, 15.

48. See Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25.

49. Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540 at 551 (Kirby P).

50. Civil Aviation Authority v Australian Broadcasting Corp at 551 (Kirby P).

51. See Vine Products Ltd v Green [1966] ch 484 at 496 (Buckley J); Pickering v Liverpool Daily Post & Echo Newspapers Plc [1991] 2 AC 370 at 425 (Lord Bridge).

52. The Phillimore Committee recommended instead that a special inquiry be conducted into the issue of payment of potential witnesses for media interviews, to consider whether legislation was necessary to restrain or wholly prohibit this practice: see United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 78-79.

53. See United Kingdom, Home Office and the Scottish Home and Health Department, Interdepartmental Committee on the Law of Contempt as it Affects Tribunals of Inquiry, Report of the Interdepartmental Committee on the Law of Contempt as it Affects Tribunals of Inquiry (HMSO, London, Cmnd 4078, 1969) at para 32.

54. Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 7.8-7.9; Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 340-343.

55. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 391-392.

56. Australian Law Reform Commission, Contempt (Report 35, 1987) at 462-465 (Administration of Justice (Protection) Bill 1987 (Cth) cl 16, 17).

57. Australian Law Reform Commission, Contempt (Report 35, 1987) at 465-465 (Administration of Justice (Protection) Bill 1987 (Cth) cl 18).

58. Victoria, Law Reform Commission, “Comments on Australian Law Reform Commission Report on Contempt No 35” (Unpublished paper, Melbourne, 1987) at para 4.3.

59. Crimes (Protection of the Administration of Justice) Amendment Bill 1993 (Cth) cl 50J.

60. See, for example, Bell v Stewart (1920) 28 CLR 419 at 433 (Isaacs and Rich JJ); Kerr v O’Sullivan [1955] SASR 204.

61. See Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation (1982) 152 CLR 25 at 58 (Gibbs CJ), at 103 (Mason J), at 136 (Wilson J); Attorney General (SA) v Nationwide News Pty Ltd (1986) 43 SASR 374 at 381-386 (Jacobs J), at 391-393 (Matheson J).

62. See Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at 387; Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540 at 548-550 (Kirby P), at 564 (Handley JA), at 574 (Sheller JA).

63. See X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 590-591 (Kirby P); R v Regal Press Pty Ltd [1972] VR 67 at 79.

64. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 49, where the Phillimore Committee noted that judges are generally capable of putting extraneous matter out of their minds. However, in its recommendations, the committee did not exclude influence on judicial officers as a ground of liability. The Irish Law Reform Commission followed a similar approach: see Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 115. The Canadian Law Reform Commission took the view that, while judges may generally be impervious to influence, the possibility of such influence could not be ruled out altogether, and that in the case of judicial officers, the sub judice rule served an important function of protecting the public perception of impartiality: see Canada, Law Reform Commission, Contempt of Court: Offences Against the Administration of Justice (Working Paper 20, 1977) at 42-43; (Report 17, 1982) at 30.

65. See Australian Law Reform Commission, Contempt (Report 35, 1987) at 464-465 (Administration of Justice (Protection) Bill 1987 (Cth) cl 17) and at para 376-386. Although, the recommendation was that the rule apply in a modified form.

66. Justice Greg James is of the view that this assumption may safely be made except in the case of publicity calculated actually or ostensibly to influence the judicial officer so that the proceedings are affected, for example, by a necessary disqualification. Such an instance might be regarded, however, as attracting liability because of “embarrassment”: see para 4.53-4.57.

67. For examples of empirical research conducted into the effect of extraneous information on judicial officers, see S Landsman and R Rakos, “A Preliminary Inquiry into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation” (1994) 12 Behavioral Sciences and the Law 113.

68. Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation (1982) 152 CLR 25.

69. See Attorney General (NSW) v Mundey [1972] 2 NSWLR 887; Attorney General (SA) v Nationwide News Pty Ltd (1986) 43 SASR 374.

70. R v The Herald & Weekly Times Ltd [1999] VSC 432; R v The Herald & Weekly Times Ltd (No 2) [2000] VSC 35.

71. See para 7.75.

72. See para 7.72-7.77, Proposals 14, 15 and 16.

73. See para 7.75.

74. See para 7.40-7.48, 7.78-7.84.

75. See at para 7.47 for the reasons for this.

76. Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 309-310; Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.9; Victorian Law Reform Commission, Comments on Australian Law Reform Commission Report on Contempt No 35 (unpublished paper, 1987) at 4.1; Australian Law Reform Commission, Contempt (Report 35, 1987) at para 291 (Administration of Justice (Protection) Bill 1987 (Cth) cl 16).

77. This was the approach favoured by the Commonwealth government in its 1992 position paper: Australian Attorney General’s Department, The Law of Contempt (Position Paper, 1992) at 4-5. See also M Chesterman, “Specific Safeguards Against Media Prejudice” (1985) 57 Australian Quarterly 354 especially at 358.

78. See Packer v Peacock (1912) 13 CLR 577 at 587 (Griffiths CJ).

79. See Packer v Peacock (1912) 13 CLR 577 at 588 (Griffiths CJ); Attorney General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 369-370.

80. See, for example, Attorney General (NSW) v John Fairfax & Sons Ltd (NSW, Court of Appeal, No 371/87, 21 April 1988, unreported); Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563. 81. Attorney General (NSW) v John Fairfax & Sons Ltd [1980]

1 NSWLR 362; Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Attorney General (NSW) v Dean (1990) 20 NSWLR 650.

82. Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616; Attorney General (NSW) v Dean (1990) 20 NSWLR 650.

83. R v Truth Newspaper (Vic, Supreme Court, No 4571/93, Phillips J, 16 December 1993, unreported).

84. See Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 713 (McHugh JA).

85. R v Pacini [1956] VLR 544; Attorney General (NSW) v Mirror Newspapers Ltd [1962] NSWR 856; R v Australian Broadcasting Corp [1983] Tas R 161.

86. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 291.

87. This was the conclusion reached by the Australian Law Reform Commission: see Report 35, 1987 at para 317.

88. For this reason, the Federal government in 1994 took the view that this approach did not provide sufficient certainty for the media: see Australia, Attorney General’s Department, The Law of Contempt (Position Paper, 1992) at 5.

89. This was a concern expressed by the NSW Court of Appeal in Attorney General (NSW) John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367-368. See also Packer v Peacock (1912) 13 CLR 577 at 587 (Griffith CJ).

90. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 291.

91. Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 309-310; Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.9. This was also the approach suggested by the Victorian Law Reform Commission: see Victoria, Law Reform Commission, Comments on Australian Law Reform Commission Report on Contempt No 35 (unpublished paper, 1987) at para 4.1.

92. See Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 16 October 1997, unreported) (liability), (NSW, Court of Appeal, No 40236/96, 11 March 1998, unreported) (penalty).

93. See R v Truth Newspaper (Victoria, Supreme Court, No 4571/93, Phillips J, 16 December 1993, unreported).

94. See R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281 at 285; Solicitor-General v Broadcasting Corporation of New Zealand [1987] 2 NZLR 100 at 108.

95. See Bush v The Queen (1993) 43 FCR 549; and Connell v The Queen (No 6) (1994) 12 WAR 133.

96. See R v Glennon (1992) 173 CLR 592. In this case, survey evidence was in fact tendered, but was held to be inconclusive.

97. Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318.

98. See Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 at para 95, 102.

99. See Evidence Act 1995 (NSW) Part 3.3, especially s 79, 80.

100. Attorney General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 368; Attorney General (NSW) v Television and Telecasters (Sydney) Pty Ltd (NSW, Supreme Court, No 11752/97, James J, 10 September 1998, unreported) at 12.

101. R v Australian Broadcasting Corp [1983] Tas R 161.

102. Attorney General v MGN Ltd [1997] 1 All ER 456 at 460 (Schiemann LJ); Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 16 October 1997, unreported) at 7 (Powell JA).

103. Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 713 (McHugh JA), at 697 (Glass JA). See also Attorney General v MGN Ltd [1997] 1 All ER 456 at 465 (Schiemann LJ).

104. Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 16 October 1997, unreported) at 7 (Powell JA).

105. See Registrar of the Court of Appeal v John Fairfax Group Pty Ltd (NSW, Court of Appeal, No 40478/92, 21 April 1993, unreported); R v David Syme & Co Ltd [1982] VR 173; R v Pearce (1992) 7 WAR 395; Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 16 October 1997, unreported). See also M Chesterman, “Media Prejudice During A Criminal Jury Trial: Stop the Trial, Fine the Media, or Why Not Both?” (1999) 1 University of Technology Sydney Law Review 71.

106. Registrar of the Court of Appeal v John Fairfax Group Pty Ltd (NSW, Court of Appeal, No 40478/92, 21 April 1993, unreported). See R v Meissner (NSW, Court of Criminal Appeal, No 60170/92, 30 October 1992, unreported) for an account of the trial judge’s questioning of the jury. See also Registrar, Supreme Court of South Australia v Advertiser Newspaper Ltd (SA, Supreme Court, No 2418/95, Bollen J, 17 May 1996, unreported), in which it was clear that the jury could not have read the offending publication because they had been sequestered, but the publisher was nevertheless liable for contempt. In this case, however, the publisher pleaded guilty, which meant that the court was not required to consider the relevance of the fact that the jury could not have read the publication to the issue of liability.

107. See R v Nationwide News Pty Ltd (Victoria, Supreme Court, No 6129/97, Gillard J, 22 December 1997, unreported) at 22.

108. See Registrar of the Court of Appeal v John Fairfax Group Pty Ltd (NSW, Court of Appeal, No 40478/92, 21 April 1993, unreported) at 3 (Mahoney JA); Australian Law Reform Commission, Contempt (Report 35, 1987) at para 259, 293.

109. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 259.

110. M Chesterman, “Media Prejudice During a Criminal Jury Trial: Stop the Trial, Fine the Media, or Why not Both”.

111. R v Pearce (1992) 7 WAR 395 at 425-426 (Malcolm CJ).

112. See R v George (1987) 9 NSWLR 527; R v Murdoch (1987) 37 A Crim R 118; R v Glennon (1992) 173 CLR 592.

113. See Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281; Attorney General (NSW) v Television and Telecasters (Sydney) Pty Ltd (New South Wales, Supreme Court, No 11752/97, James J, 10 September 1998, unreported); R v Day and Thomson [1985] VR 261.

114. Attorney General (NSW) v Television and Telecasters (Sydney) Pty Ltd (NSW, Supreme Court, No 11752/97, James J, 10 September 1998, unreported). See also Attorney General (NSW) v John Fairfax & Sons Ltd (NSW, Court of Appeal, No 371/87, 21 April 1988, unreported) at 23; R v Barber (WA, Supreme Court, Full Court, No 2330/90, 22 October 1990, unreported); Attorney General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 368; Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364 at 370 (Kirby P), at 379 (Sheller JA). But see Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Attorney General v Birmingham Post and Mail Ltd [1998] 4 All ER 49 at 57 (Simon Brown LJ).

115. M Chesterman, “Media Prejudice During a Criminal Jury Trial: Stop the Trial, Fine the Media, or Why not Both?” at 80.

116. See Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 663 (Hope JA); R v Day [1985] VR 261 at 264 (Gobbo J). But see the consideration of R v Day by James J in Attorney General (NSW) v Television and Telecasters (Sydney) Pty Ltd (NSW, Supreme Court, No 11752/97, James J, 10 September 1998, unreported) at 9-10.

117. See R v Day [1985] VR 261 at 264 (Gobbo J).

118. Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 663 (Hope JA). In that case, although the publication had the requisite tendency, the defendant was found not to be liable for contempt, on the basis that the publication was in the public interest.

119. Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318.

120. See Attorney General v Birmingham Post and Mail Ltd [1998] 4 All ER 49 at 59 (Simon Brown LJ).

121. See R v CHBC Television (British Columbia, Court of Appeal, No 24128, 8 February 1999, unreported) at 75 (Esson JA).

122. See Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364 at 370 (Kirby P).

123. R v George (1987) 9 NSWLR 527 at 533 (Street CJ).

124. Although this rarely happens.

125. See Attorney General v Birmingham Post and Mail Ltd [1998] 4 All ER 49 at 53 and 57-58 (Simon Brown LJ), at 61-62 (Thomas J).

126. An English judge has commented that it would be difficult to envisage a publication which has concerned a trial judge sufficiently to discharge the jury and yet is not properly to be regarded as a contempt: Attorney General v Birmingham Post and Mail Ltd [1998] 4 All ER 49 at 59 (Simon Brown LJ). See also Attorney General v Morgan [1998] EMLR 294. In that case, a decision of the Queen’s Bench Division, counsel for the defendants successfully applied for a stay of proceedings when their case came to trial on the basis of prejudice caused by a newspaper article. The article had described the alleged conspiracy with which the defendant had been charged as established fact and referred to the defendants’ criminal records, thereby creating a substantial risk that subsequent criminal proceedings would be seriously prejudiced.

127. Evidence Act 1995 (NSW) s 129.

128. Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695. See also Attorney General v MGN Ltd [1997] 1 All ER 456 at 463 (Schiemann LJ).

129. Director of Public Prosecutions (Cth) v Wran (1986) 7 NSWLR 616 at 628-629.

130. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 318-319.

131. Attorney General (NSW) v TCN Channel Nine (1990) 5 BR 10 at 20 (Hunt J).

132. See Waterhouse v Australian Broadcasting Corp (1986) 6 NSWLR 716 at 736 (Mahoney JA); Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 383. See also Attorney General v News Group Newspapers Ltd [1987] 1 QB 1 at 16 (Donaldson MR); Ex parte Telegraph Plc [1993] 2 All ER 971 at 978 (Taylor CJ); Attorney General v MGN Ltd [1997] 1 All ER 456 at 461.

133. See Attorney General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405 at 410-411 (Kirby ACJ) (although it is worth noting that, in that case, the Court was concerned with factors affecting the penalty for contempt, rather than the question of liability, since the newspaper publisher had admitted the contempt alleged). See also, for New Zealand authority on this point, Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 at 573-574 (Richardson J).

134. (1994) 120 DLR (4th) 12.

135. See Dagenais v Canadian Broadcasting Corp (1994) 120 DLR (4th) 12 at 38 (Lamer CJ) (in the majority). The New Zealand Court of Appeal took the view that the same reasoning would apply: see Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 at 573 (Richardson J).

136. See Attorney General v Birmingham Post and Mail Ltd [1998] 4 All ER 49, especially at 53-59 (Simon Brown LJ), at 61 (Thomas J).