• Introduction
• Freedom of speech vs due process of law
• Assumptions underlying the subjudice rule
• Alternative remedial measures
• Communication technologies
• Submissions
• The Commission's view

INTRODUCTION

2.1 In this review of the law of sub judice contempt, the Commission has considered it necessary to re-examine whether or not the sub judice rule should be retained at all. The arguments for and against retention of the rule were discussed at length in Discussion Paper 43 (“DP 43”). These centred on two main issues.

2.2 First, the competing public interests in freedom of speech and a fair trial were considered. DP 43 argued that although freedom of expression is one of the hallmarks of a democratic society, it cannot be absolute. It is always regarded as liable to be overridden by important countervailing interests, the relevant one in this context being due process of law. Paragraphs 2.5-2.26 below summarise the debate as to what should be the proper balance between the public interests in a fair trial and free speech, and whether retention of the sub judice rule impedes or advances such balance.

2.3 Secondly, the Commission sought to evaluate the soundness of certain assumptions on which the sub judice rule is predicated. Paragraphs 2.27-2.47 below look at empirical research which tests these assumptions.

2.4 In this chapter, the sole question is whether there should by any sub judice rule at all. If the conclusion is reached to retain a rule in some form, the question that then arises is whether the content of the rule should be as at present or whether there should be modifications. This aspect is explored fully in later chapters.

FREEDOM OF SPEECH VS DUE PROCESS OF LAW

2.5 As outlined above, the first broad issue is whether it is possible to achieve a proper balance between freedom of speech and due process of the law in the absence of sub judice liability. The Commission takes the view that “a proper balance” does not mean each public interest is equally weighted. Rather, measures that are clearly necessary for due process of the law should take precedence over freedom of speech.

2.6 Support for this view comes from both the weight of general opinion and from judicial authority. As to the first, the belief that the public interest in a fair trial will almost always outweigh the public interest in freedom of expression, generally goes unchallenged. It is particularly justified in relation to criminal trials where an individual’s liberty and/or reputation are at stake, and where the public have an interest in securing the conviction of persons guilty of serious crime. This was emphasised by Justice Brennan in the High Court decision, R v Glennon:

Free speech is not the only hallmark of a free society, and sometimes it must be restrained by laws designed to protect other aspects of the public interest. Thus the law of contempt of court seeks to strike a balance between the two competing public interests [in the integrity of the administration of justice and in freedom of expression]. … The integrity of the administration of justice in criminal proceedings is of fundamental importance to a free society. Freedom of public expression with reference to circumstances touching guilt or innocence is correspondingly limited.¹

When a conflict arises between a fair trial and freedom of speech, the former has prevailed because the compromise of a fair trial for a particular accused may cause them permanent harm (for example, because a conviction has been entered wrongly), whereas the inhibition of media freedom ends with the conclusion of the legal proceedings.²

Legal protection of freedom of expression

2.9 The High Court has considered legal protection of freedom of expression in a number of significant decisions. In Nationwide News Pty Ltd v Wills³ the court held that the Commonwealth Constitution contained an implied guarantee of freedom of “political discussion” in Australia, and that Commonwealth legislative powers, at least, were limited by this implied freedom of communication.

2.10 In Theophanous v Herald Weekly Times Ltd,⁴ a defamation case, the Court upheld a defence that relied on the implied constitutional protection of freedom of political discussion. However, despite a wide definition of “political discussion” by three of the judges,⁵ there is nothing in the judgment to suggest that the constitutionally implied freedom was a freedom of speech generally, such as is expressly provided for in the American Constitution. The freedom of speech that was guaranteed was that which was necessary to provide the democratic underpinnings for representative and responsible government. Justice Deane specifically referred to the effect on the law of contempt of an implied constitutional freedom of speech:

nothing in this judgment should be understood as suggesting that the traditional powers of the Parliament and superior courts to entertain proceedings for contempt are not justifiable in the public interest.⁶

2.12 In Attorney General (NSW) v Time Inc Magazine Co Pty Ltd, the New South Wales Court of Appeal rejected an argument that the common law principles of contempt contravened an implied right of freedom of communication or expression. The Court held that, while it is perfectly legitimate to seek profit from providing information and entertainment to readers of newspapers and magazines, there is no right, under the Constitution or at common law, to do so. The Court observed that:

[t]he common law principles … are themselves the result of a balancing of competing interests; the public interest in freedom of expression and the public interest in the administration of justice. Freedom of expression is not unconditional. Expression can, for legally relevant purposes, be free even though it is subject to other legitimate interests”.⁹

[i]t would be unthinkable if the beneficial development of the implied constitutional right to free communication upon certain matters integral to the political system established by the Constitution were seen … as a vehicle for destroying the essential power and duty of the courts in this country to protect the fair trial right of persons accused of crimes.¹¹

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.¹²

How does the sub judice rule affect the free speech/fair trial balance?

2.16 There are a number of aspects to the debate as to whether, on the one hand, the sub judice rule is needed to ensure that freedom of speech does not jeopardise a fair trial and, on the other hand, whether it restricts free speech excessively. In paragraphs 2.17-2.26 below, the Commission has considered the following questions:

• Does the sub judice rule impinge upon the principle of “open justice”?
• Would the rules of evidence be undermined if there were no sub judice rule?
• Would justice be seen to be done if there were no sub judice rule?
• Is the debate affected by the operation of time limits for, or the availability of defences to, sub judice liability?
• Is the debate based on an erroneous understanding of the role of the media?
• What weight should be given to the fact that certain publications have a particular propensity to prejudice proceedings?

Rules of evidence
2.18 The function of rules of evidence was discussed in DP 43.¹⁸ Briefly, rules of evidence ensure that the material on which the jury bases its findings of fact is relevant to the charge being heard, is not hearsay (generally speaking) and can be reliably tested in court, in the presence of the jury. As a result, the rights of an accused to a trial by jury and to be presumed innocent until proven guilty beyond reasonable doubt, are upheld. There is undoubtedly a strong argument that the sub judice rule acts as an important shield against jurors being exposed to material which the rules of evidence would otherwise keep from them. Exposure to inadmissible evidence through the media could well compromise the fairness of the trial.

Justice must be seen to be done
2.19 The justice system must not only ensure a fair trial but it must be apparent to onlookers that the trial has been fair.¹⁹ In this way, public confidence in the administration of justice is maintained. A function of the sub judice rule is to preserve confidence in the judicial system by protecting against the appearance of decisions having been influenced by published material, rather than being impartial and based on the evidence presented in court.

Time limits
2.20 As a general rule, a publication will only constitute a contempt under the sub judice rule if it relates to proceedings which are current or pending. Assuming such time limits are retained, the sub judice rule does not operate to suppress free speech for all time but only to postpone discussion and dissemination of news until the danger of prejudicing a fair trial has passed.

Defences
2.21 In addition to the defences of “fair and accurate reporting” and “public interest”, referred to in paragraph 2.17 above, the following defences to sub judice liability expand the scope of freedom of speech, while still preserving a sub judice rule.

2.22 Fault. In Chapter 5, the Commission recommends that a charge of sub judice contempt could be defended on the grounds of lack of relevant knowledge or control, providing reasonable steps to prevent the breach were taken.²⁰ The effect of this recommendation is that the law of sub judice contempt would no longer impose absolute liability. Limiting liability in this way achieves a better balance between freedom of speech and a fair trial.

2.23 Public safety. Publications which are reasonably necessary or desirable to facilitate the arrest of a person, or aid in the investigation of an offence or to protect public safety, may be immune from application of the sub judice rule, even if they would otherwise be found to be in contempt, under a broad application of the public interest principle. Establishing a defence to a charge of contempt on the basis of “public safety”, which the Commission recommends,²¹ places a further check on the curtailment of freedom of speech which is otherwise a consequence of the operation of the sub judice rule. As with the availability of other defences, this lends weight to the arguments for retaining the rule.

Circumstances where to impose liability appears unfair

2.24 In some circumstances, liability for publication may arise even where it may, outwardly, seem unfair for a charge of contempt to stand. This, it has been argued, has a “chilling effect” on media coverage.²² For example, it is generally no defence to show that use of an alternative remedial measure would have minimised or negated prejudicial influence.²³ Further, the actual impact of prejudicial publicity is not relevant to liability for sub judice contempt. But any unfairness can be mitigated by redefining the test for liability and/or making liability dependent on additional factors. The Commission recommends that the present common law test for liability be clarified and narrowed to require that a “substantial risk of prejudice” must be shown.²⁴ Replacing absolute with strict liability would also help to redress the balance.

Commercial nature of media publishing

2.25 In the contest between freedom of speech and due process of law, it needs to be remembered that the publication or broadcast of news is often a commercial activity.²⁵ In Attorney General (NSW) v Time Inc Magazine Co Pty Ltd, Chief Justice Gleeson, although acknowledging that it is perfectly legitimate to seek profit from providing information and entertainment to the public, held that there is no right, under the Constitution or at common law, to do so at the expense of the due administration of justice.²⁶

Specific examples of media publicity

2.26 There are certain kinds of publicity that have a particular propensity to give rise to difficulties in ensuring a fair trial, and even to miscarriages of justice. These high-risk publications include material relating to identification evidence, prior criminal convictions and confessions of guilt.²⁷ The material often constitutes inadmissible evidence. Knowledge of a confession or a previous conviction, for example, is difficult to put out of mind, and its prejudicial effects are difficult to displace by warnings as to the irrelevancy and inadmissibility of the information. In the absence of sub judice liability, and in spite of the availability of remedial measures, the freedom to publish these kinds of information would have the potential to seriously impede the due administration of justice.

ASSUMPTIONS UNDERLYING THE SUB JUDICE RULE

2.27 The sub judice rule, in its application to publications potentially affecting juries, assumes that if jurors and witnesses are exposed to media material about a trial that is not part of the evidence presented, tested and argued in court, they may retain that information and be hindered from reaching an impartial and proper verdict. This premise itself assumes that prejudice induced by media reporting will not be neutralised by the evidence in court, and by judicial warnings and directions.

Influence of media

2.28 DP 43 outlined a number of arguments for greater freedom of the press which question the influence that the media really has on public perceptions.²⁸ Judges sometimes refer to the wide divergence of opinions on this issue.²⁹ If the media’s influence is not as great as is often assumed, it can be argued that there is a lesser need or no need at all to place controls on the media.³⁰

2.29 The Commission acknowledges the reality that many, if not most, jurors come to a trial with prejudices and preconceptions, both generic and specific to the trial, regardless of their exposure to media reporting. The Commission also acknowledges that it is difficult to identify the elements of prejudice that may have arisen from media publicity and to apply selective prohibitions to those alone.³¹

2.30 However, what the sub judice rule seeks to do is to filter out the most damaging of prejudicial effects. It seeks to ensure that views formed prior to the trial, or from extrinsic sources during the trial, are not held so strongly that they cannot be displaced by the evidence that is presented and tested in the courtroom, judicial directions and instructions, and arguments and submissions by counsel. It seeks to suppress only that material which has a real and definite tendency, as a matter of practical reality, to prejudice legal proceedings.³² Furthermore, as pointed out above, suppression is for a limited time only and liability for contempt is only sheeted home where any of the grounds of exoneration are not available.

Empirical research regarding juries

Current Australian research
2.31 In Australia, the only sustained empirical research into the impact of media publicity on juries is a study of criminal jury trials in New South Wales. Its findings are published in Managing Prejudicial Publicity.³³ This is important research for the purposes of this Report, and therefore necessary to refer to it in detail, for a number of reasons:

• First, it is immediately relevant to New South Wales because it is in the context of this State’s legal system and journalism; and the participants are inhabitants of this State.
• Secondly, the publicity that it looks at includes news and information published on the Internet, not just news disseminated through traditional media.
• Thirdly, the study employs a methodology, namely a multiple case-study approach, not used, as far as the authors are aware, in any previous investigation of the particular subject, either in Australia or overseas.³⁴

The interviewees were asked about their impressions of how prejudicial media publicity associated with the trial might have affected the perceptions of the jurors and the verdicts reached. They were also asked about a number of associated matters, such as what in their view were the principal issues for determination by the jury and what steps, if any, were taken within the trial process to prevent or mitigate any prejudice potentially arising from publicity. Independent research into the scale and nature of the media publicity associated with each trial was also carried out.³⁵

2.34 Influence of publicity on jurors. In 38 of the trials that were attended by specific publicity, only 4% of jurors considered that this publicity may have influenced them and only 7% considered that it may have influenced their fellow-jurors.³⁸ These claims of relative immunity from the influence of publicity were scrutinised with reference to a number of other factors relating to each trial. These factors included the quality of the jury’s verdict. In this context, a “safe” verdict was one which the trial judge, defence counsel and prosecuting counsel considered justifiable on the evidence; an “unsafe” verdict one which two or more of the trial judge, defence counsel or prosecuting counsel considered not to be supported by the evidence; and a “possibly unsafe” verdict one which counsel on the losing side considered not to be supported by the evidence.

• The verdicts were safe in 30 trials. The authors concluded that in some of these it is likely, or at least possible, that publicity determined the verdict and that in others publicity, while not determining the verdict, exerted an influence on one or more individual jurors.³⁹
• In two trials, the verdicts were unsafe and in line with the tenor of surrounding publicity. It seemed likely in one of these, an acquittal, and possible in the other, that publicity determined the verdict.⁴⁰
• In eight trials, the verdicts were possibly unsafe and in line with the tenor of surrounding publicity. It seemed likely in one of these that publicity determined the verdict.⁴¹

2.36 The authors point out that, “given that high-profile trials were selected for study, the proportion in which the verdict was considered likely to have been ‘publicity-driven’ rather than based on the evidence was relatively small”.⁴³ There were only three trials, constituting 8%of the sample.

2.37 The other positive aspects of the conclusions reached should be noted. One is that in a significant number of the trials studied (12, representing 30%), the verdict reached was in opposition to the tenor of the publicity, and was a “safe” verdict.⁴⁴ Even losing counsel considered it acceptable on the evidence. The other is that, while in some of these trials individual jurors appeared to have been influenced by the publicity, this influence was overridden by discussion of the evidence with their fellow-jurors. These jurors ultimately concurred in a “safe” verdict which contradicted the tenor of the publicity.⁴⁵

2.38 The authors concluded from their research that New South Wales jurors demonstrate a relatively satisfactory level of resistance to publicity.⁴⁶ They attribute this to five principal causes.⁴⁷ Briefly, three of these causes are that: jurors often believed that newspaper coverage of their trial was inaccurate and/or inadequate;⁴⁸ most juries scrutinise the evidence carefully, so that any influence exerted by publicity is overridden; and juries often demonstrate a high level of independence, so that they do not simply cave in to media pressure.

2.39 It is the other two of the five identified causes that are most critical to determining whether sub judice liability should be retained:

• First, the sub judice rule ensures that “jurors are normally not exposed either (a) to pre-trial specific publicity which is both intensely prejudicial in content and published close to the time of commencement of the trial, or (b) to publicity during the trial which is intensely prejudicial”.
• Secondly, on account of the limits imposed by the sub judice rule on the content and timing of publicity, “jurors overall are not likely to recall pre-trial specific publicity, even in general terms, let alone in detail.”⁴⁹

Other studies
2.41 DP 43 examines a large body of empirical research that attempts to assess the extent of the media’s influence and, in particular, the effect of publicity on the outcome of a trial. The Commission concluded that the studies looked at could not reliably be used to support or rebut assumptions underlying the rationale for the sub judice doctrine. There were three main reasons for this. First, the studies fell almost equally into opposite camps in the conclusions they reached. Secondly, their outcomes, within each camp, were often ambiguous. Thirdly, the methodology used had a number of limitations.⁵²

2.42 Recent research conducted in New Zealand, England and America is examined in paragraphs 2.43-2.47 below.

2.43 New Zealand. The New Zealand Law Commission (“NZLC”) conducted research into the effects of pre-trial and trial publicity on juries in the course of its review of juries in criminal trials.⁵³ The study found that only 19% of jurors said they recollected pre-trial publicity but there was much greater awareness of publicity during the trial. “While there were only 20 cases (42%) in which one or more jurors saw or heard publicity during the trial, there were in total 106 jurors (34%), including all or most in 15 out of the 20 cases, who did so.”⁵⁴ However, of those who were aware of publicity, only two jurors acknowledged that the pre-trial publicity had affected them and none acknowledged that the publicity during the trial had affected them. The NZLC noted the limitations of jurors self-reporting media influence as they would be reluctant to admit that they had not followed judicial instructions to ignore publicity. As well, they may have been unaware of any biases or preconceptions arising from such publicity, or, if aware, may have believed that they had set them aside.⁵⁵

2.44 The NZLC concluded from the research that “jurors are not generally affected by the current level of pre-trial or during-trial publicity”.⁵⁶ However, the NZLC rejected a view put forward by the Newspaper Publishers’ Association that the research demonstrated that jurors were able to put publicity out of mind and that it lent support for its call for greater freedom of the press. The NZLC answered that “an increase in the current level of publicity could mean a greater impact and a different result”.⁵⁷ It went on to say:

… it can be assumed that the more we permit pre-trial publicity, the more effect it will have on jurors, and the more we would move away from the current low-impact position. This does not appear to the Commission to be a desirable development. ⁵⁸

2.46 America. The effect of pre-trial publicity on jury verdicts was examined in an American study of 23 articles published between 1966 and 1997.⁶² The articles were chosen on the basis that each of them tested the hypothesis that jurors exposed to negative pre-trial publicity will produce higher percentages of guilty verdicts than jurors exposed to more neutral pre-trial publicity. The authors counted 44 tests of the hypothesis in the 23 articles and summarised that “23 [tests] supported the hypothesis, 20 reported no significant difference at the traditional 0.05 level, and 1 produced a significant result in the opposite direction”.⁶³ The authors commented:

It is likely that this apparent fragmentation of the research base is what has driven some researchers to opposing conclusions about the PTP [pre-trial publicity] effect.⁶⁴

pretrial publicity has a significant effect on subjects’ judgments regarding the guilt of the defendant, as evidenced by results in both laboratory studies and community survey research … Jurors exposed to publicity which presents negative information about the defendant and crime are more likely to judge the defendant as guilty than are jurors exposed to limited PTP.⁶⁵

2.48 Does the availability of “alternative remedial measures” to negate or minimise the effects of prejudicial publicity make the sub judice rule unnecessary? Alternative remedial measures which the court may adopt, either on the application of one of the parties, or in some instances of its own volition, include: ordering an adjournment or permanent stay of proceedings; ordering a change of venue; discharging the jury; allowing the defence or prosecution to object to the selection of a person as a juror; and directing the jury to disregard publicity.⁶⁶ This last remedy will now be discussed.

Judicial warnings and instructions

2.49 At the conclusion of a trial, it is usual practice for the judge to instruct the jury to reach their verdict solely on the evidence and law that has been presented to them in the course of the trial, and to ignore extraneous considerations. In particular, if there has been media reporting of the trial, the jury will be given a warning in terms that any information or impressions gleaned from the media, which did not specifically correlate with the evidence and argument presented in court, must be ignored.

2.50 However, it is almost impossible to know whether these instructions and warnings have the effect of cleansing the juror’s mind of preconceptions or prejudices. One American study actually concludes that such warnings enhance the likelihood that the verdict will be influenced by the relevant publicity.⁶⁷ It may be possible to put something out of one’s mind at a conscious level, but it is impossible to say whether or not information may yet operate at a subconscious level to influence thinking. In relation to the reporting of confessions or prior convictions, warnings from the bench are unlikely to displace the highly prejudicial effects of such material.

2.51 It also cannot be assumed, as the Australian Law Reform Commission points out, that members of a jury are wholly obedient and passive in response to instructions from the bench to ignore media publicity.⁶⁸ The Managing Prejudicial Publicity study found that “jurors are not always docile creatures”.⁶⁹ In 34 of the 41 trials studied, there was newspaper coverage of the proceedings. Despite judicial instructions, one or more members of each jury followed this coverage and in 32 of the trials it was discussed in the jury room.⁷⁰ Many of the judges and counsel interviewed in the study recognised that it is often impossible for jurors to comply fully with instructions to avoid in-trial publicity. In fact, the authors comment that “judges, counsel and others concerned with the criminal justice system may … be surprised at the extent of non-compliance with judicial directions”.⁷¹ The study also found that individual jurors or groups of jurors occasionally seek out information themselves that they believe might be relevant to their task and in doing so may consciously disobey judicial instructions.⁷² Furthermore, even if the jurors themselves stay away from reports of the trial, family or friends will often tell them about the reports.

The American experience

2.52 Examining the use of remedial measures in the USA provides some insight into the effect of publicity on the fairness of trials in the absence of the sub judice rule. Unlike the approach taken in New South Wales, the US legal system relies far more heavily on remedial measures than it does on the restrictions on publicity imposed by contempt law, to minimise the possibility of prejudice to proceedings.⁷³

2.53 DP 43 notes⁷⁴ that individual judges have objected to the prejudicial effects of media coverage⁷⁵ and there have been a number of reversals of convictions as a result of pretrial publicity.⁷⁶ In one case, one of the judges explicitly questioned the wisdom of remedying prejudicial publicity by reversal of convictions, rather than controlling the press before damage is done:

The court has not yet decided that, while convictions must be reversed and miscarriages of justice result because the minds of jurors or potential jurors were poisoned, the poisoner is constitutionally protected in plying his trade.⁷⁷

the cure [for prejudicial publicity] lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.⁷⁹

2.56 It is ironic that Justice Clark continued his comments by suggesting that trial judges should insulate witnesses from press interviews, should control statements made to the news media by counsel, witnesses, the Coroner and police officers, and should proscribe extrajudicial statements by lawyers, parties, witnesses and court officials which divulged prejudicial matters.⁸⁰ It seems an incomplete and circuitous, if not contradictory, way of averting prejudicial publicity to suppress the free speech of all the participants in the trial but not the media.

Conclusion

2.57 Except for judicial directions to juries, remedial measures all come at a price, either pecuniary or non-pecuniary and sometimes both. A greater reliance on remedial measures increases the expenses that must be borne by the State and by the accused (unless there is a grant of legal aid, which is itself a cost borne by the State). Where there has to be a new trial because it has been necessary to discharge the jury, or because a verdict is set aside on appeal, these expenses can be substantial.⁸¹ Remedies that delay the finalisation of criminal charges, including protracted striking of a jury and adjournment of proceedings, increase the strain and hardship suffered by the accused, who may be in custody. Remedies may also cause, at best, inconvenience and, more seriously, emotional upset and hardship to parties, witnesses and jurors. It is easy to envisage these effects when a jury must be sequestered for part or all of the trial. In fact, the particular pressure imposed by jury sequestration “may be so arduous that the jury’s capacity to deliberate with the necessary dispassionate calm is also put at risk”.⁸²

2.58 Likewise, a change of venue to locations away from the seat of the publicity causes inconvenience and expense to many, if not all, of those involved in the trial. In highly sensational cases, the effectiveness of changing the venue would be limited if no restraints on publicity existed. In relation to trials in the USA, it has been said that “publicity is often so widespread that relocating the trial will have little effect, the local community has a legitimate interest in the prosecution of the defendant, and defendants should not be compelled to choose between their rights to an impartial jury and a local jury”.⁸³ Irrespective of publicity, however, it may be highly desirable anyway when to summon jurors from the immediate locality would impose intolerable pressures upon them.

2.59 Not only do the major remedial measures themselves involve increased costs and pressures, but reliance on such measures alone, rather than in conjunction with liability for contempt, can in itself place excessive pressure on jurors and witnesses, including the pressure to deliver a verdict that will be approved of by the public.

2.60 Where the possibility of prejudice to a fair trial is so serious as to warrant a permanent stay of proceedings, or where a conviction must be quashed due to prejudicial publicity, the public interest in administration of justice is frustrated. An accused who may have been found guilty of a crime (and, when publicity has been intense, it is most likely to have been a serious crime) goes unpunished. The victim of the crime is left without having his or her suffering and outrage aired and without seeing retribution.⁸⁴

2.61 The US approach assumes that remedial measures will be effective in either producing a jury which has the requisite degree of impartiality, or in negating, or counteracting, the effects on juries of exposure to prejudicial material. In Australia, no such general assumption exists: indeed, the continuance of a law of sub judice is sometimes justified on the ground that it is an unsound assumption.⁸⁵

COMMUNICATION TECHNOLOGIES

2.62 In DP 43, the Commission examined the effect on the law of contempt of modern communication technologies, in particular, satellite and cable television, electronic mail and the Internet.

The increasing use of these new technologies is giving rise to new challenges in seeking to control exposure to prejudicial publicity. The challenges stem from a number of features pertaining to these media:

• an enormous volume of information, from innumerable sources, can be stored, disseminated, changed or removed rapidly;
• cable and satellite broadcasters and electronic media publishing in New South Wales may not rely on a local distributor answerable to the laws of this State;
• identifying where responsibility lies for Internet publications can be complex and uncertain.

2.64 The Broadcasting Services Amendment (Online Services) Act 1999 (Cth) (“Online Services Act”)⁸⁶ provides prima facie protection from strict liability (civil or criminal) under State and Territory laws for ICHs and ISPs in respect of anything published by them.⁸⁷ However, it is also possible for the Minister to exempt a specified law of a State or Territory, or a specified rule of common law or equity, from the operation of s 91(1).⁸⁸

2.65 Although the Commission supports the aims of the Online Services Act to encourage development of Internet technologies and services and to avoid unnecessary administrative and financial burdens on ISPs and ICHs,⁸⁹ the Commission recommends that where an ISP or ICH becomes aware of some contemptuous publication which it carries or hosts, it should then have an obligation to take steps within its means to prevent the material from being further published.⁹⁰ This is consistent with the framework of the Broadcasting Services Act 1992 (Cth), as amended by the Online Services Act, whereby ISPs and ICHs are required to remove content following formal notification by the Australian Broadcasting Authority.⁹¹ The Commission recommends that a defence be available for ISPs and ICHs charged with sub judice contempt.⁹² The effect of this recommendation is that ISPs and ICHs could escape liability if they can establish that they had no control over the content placed on the Internet which contained the prejudicial material and that they either did not know the content contained the material or, having become aware of this, took all reasonable steps to prevent it being published.

2.66 In other respects, the Commission is of the view that it will generally be more appropriate for the common law to respond to the effects of the new media on the conduct of fair trials on a case-by-case basis, until it becomes apparent that a legislative response is required.

2.67 As to the broad question of whether communication technologies are rendering application of the sub judice rule unworkable, the Commission believes it is too early to reach a conclusion and too early to justify abandoning the rule altogether.

SUBMISSIONS

2.68 In DP 43, the Commission reached the tentative conclusion that it is necessary for the proper administration of justice to retain the sub judice rule, subject to the reforms proposed.

2.69 The Australian Press Council (“Press Council”)⁹³ took issue with the Commission’s starting point that due process of law should take precedence over freedom of speech. The Press Council appeared to disagree with the Commission’s approach both in itself and because, in the Press Council’s reading of the arguments, the Commission had used “an outdated assumption” to justify its approach. The Council understood that “[the Commission did] not question the basis for the current law to assume … that, if there are media reports, ‘jurors will be hindered from reaching an impartial and proper verdict’”.

2.70 The Press Council argued that Managing Prejudicial Publicity and the research by the NZLC, referred to in paragraphs 2.43-2.44 above, “underlines the independence of thought that juries bring to their juror duties”. It submitted that “[t]he evidence ought to prompt a fundamental re-think of the starting point for reform”. The Press Council went on to submit that “there should be no blanket restriction on publication. Any [sub judice] law should only cover the exceptional circumstances in which restrictions should apply”. Such circumstances would include “where the published material will have an effect on perceptions, eg, photographs that might affect jurors or witnesses where identification is contested”.

2.71 It needs to be clarified that the assumption that media reports may influence jurors is not an assumption initiated by the Commission, and certainly not an assumption the Commission has used unquestioningly “to justify its approach”. As was pointed out in DP 43⁹⁴ and in paragraphs 2.27-2.30 above, this is an assumption on which the sub judice rule is based and which the Commission sought to test.⁹⁵ The Commission’s provisional view in DP 43 was that it was not possible to conclude definitively from the empirical studies either that the sub judice rule was needed to protect juries and witnesses from prejudicial media reporting, or that it was not so needed.⁹⁶

2.72 As pointed out in paragraphs 2.38-2.40 above, while the authors of Managing Prejudicial Publicity concluded that New South Wales jurors demonstrate a relatively satisfactory level of resistance to publicity, they also emphasised that “the relatively positive conclusions do not provide justification for wholly or substantially dismantling legal restrictions on publicity for criminal cases, because they presuppose the existence of these restrictions”.⁹⁷ Similarly, the NZLC’s conclusion from its finding that the impact of media publicity is minimal was that “[t]hese results strongly suggest that the controls on media in New Zealand are sufficient to protect jurors and ensure a fair trial”⁹⁸ and that “altering the level of publicity permitted would not necessarily be beneficial”.⁹⁹ This research could be interpreted, not as indicating the futility of the current laws, but as an indication that they are, in fact, working.

2.73 A collective of Australian broadcasters (the “Broadcasters”) expressed the concern that the Commission’s proposals “proceed from the assumption of retention of [sub judice] liability”.¹⁰⁰ However, this submission went on to say that “the Australian media recognise that, in some circumstances, it is necessary to limit freedom of expression so as to ensure that trials, and criminal jury trials in particular, are not compromised.” The Broadcasters submitted that the common law of sub judice contempt should remain in place.¹⁰¹ Although this was in the context of arguing against codification of the law of contempt, the underlying premise appears to be acceptance of the retention of some form of sub judice liability.

2.74 Mr Cowdery QC, Director of Public Prosecutions,¹⁰² the Law Society of New South Wales,¹⁰³ the Victorian Bar Council¹⁰⁴ and Mr Norris, Senior Solicitor, Crown Solicitor’s Office¹⁰⁵ agreed with the Commission’s proposal to retain the sub judice rule. The Victorian Bar Council was “strongly of the view that the sub judice rule performs an important function and should be retained”. It submitted:

Experience suggests that the rule performs a valuable function in protecting the integrity of the system of justice. In particular, the rule has an important role to play in protecting public perceptions of the impartiality of the system of justice and in moderating the sometimes intense pressures upon all participants in litigation.¹⁰⁶

nothing in the [Managing Prejudicial Publicity report] suggests otherwise [than that liability for sub judice contempt should be retained]. Indeed, as that report noted, “the existing regime of publicity restrictions, under which our surveys were conducted, is an essential backdrop to our findings”.¹⁰⁷ The report observed that the dismantling of the existing system of sub judice contempt could significantly affect, or even vitiate, its conclusions.

There could be little doubt that the extent of prejudicial publicity would greatly increase if the sub judice restrictions were removed. There could even be a potential, in some cases, for deliberate campaigns by accused persons or police officers to release prejudicial material (either truthful or untruthful).¹⁰⁸

2.76 On further consideration of the arguments for and against retention of the sub judice liability, the Commission sees no reason to now reach a different conclusion. As was argued in DP 43, at the very least, its retention is justified to keep alleged confessions, prior convictions and photographs of the accused from jurors and witnesses. Awareness of the first two of these is difficult to put out of mind, in spite of judicial instructions and warnings, and seriously prejudicial. Contact by witnesses with photographs will undermine the reliability of identification evidence. Even in relation to less seriously prejudicial media publicity, the Commission is not satisfied that alternative remedial measures are sufficient alone, without the operation of the sub judice rule, to protect the fairness of court proceedings.

2.77 For a number of reasons, retention of the sub judice rule is compatible with the public interests in freedom of discussion and open justice. First, restrictions on publicity are for a limited time only, that is, the time during which proceedings are current or pending. Secondly, the media can perform its role of promoting discussion of courts and the justice system without publishing the most obviously prejudicial material concerning a specific case. Thirdly, the availability of a number of defences to liability maintains an acceptable balance between free speech and a fair trial.

2.78 However, it needs to be reiterated that the Commission’s recommendation to retain a sub judice rule is made in conjunction with recommendations for reform to this area of law. In particular, two reforms would ensure a better balance between freedom of speech and the proper administration of justice. First, the operation of the rule should be narrowed by making the test for liability one of “substantial risk” of prejudice rather than “a real and definite tendency, as a matter of practical reality, to prejudice legal proceedings”.¹⁰⁹ Secondly, liability for sub judice contempt should depend on an element of fault.¹¹⁰ These recommendations are discussed in detail in Chapters 4 and 5.

RECOMMENDATION 1

Liability for sub judice contempt should be retained.

1. R v Glennon (1992) 173 CLR 592 at 611-612.

2. New Zealand, Law Commission, Juries in Criminal Trials: Part Two (Preliminary Paper 37, 1999) (“NZLC PP 37”) vol 1 at para 289. While acknowledging the right to freedom of expression and the public interest in media reporting, the Commission stated that “there is also an overriding public interest in ensuring that the criminal justice system operates effectively and fairly”: vol 1 at para 284.

3. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. A minority view in the High Court held that the implied guarantee did not impact upon the statutes of the States and Territories and the common law. See also Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2) (1992) 177 CLR 106.

4. Theophanous v Herald Weekly Times Ltd (1994) 182 CLR 104; see also Stephens v Western Australian Newspapers Ltd (1994) 182 CLR 211.

5. Chief Justice Mason and Justices Toohey and Gaudron adopted the definition of “political discussion” contained in E Barendt, Freedom of Speech (Clarendon Press, 1985) at 152, being “all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about”: Theophanous v Herald Weekly Times Ltd at 124.

6. Theophanous v Herald Weekly Times Ltd at 187 (Deane J).

7. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

8. “[T]he freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution”: Lange v Australian Broadcasting Corporation at 561. See also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (Kirby J).

9. Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSWCA, No 40331/94, 15 September 1994, unreported) at 10 (Gleeson CJ, with whom Sheller and Cole JJA concurred).

10. John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLRC 81 at 111 (Kirby P).

11. John Fairfax Publications Pty Ltd v Doe at 110 (Kirby P).

12. International Covenant on Civil and Political Rights Article 19(2).

13. International Covenant on Civil and Political Rights Article 19(3).

14. NSW Law Reform Commission, Contempt (Discussion Paper 43, 2000) (“NSWLRC DP 43”) at para 2.16-2.19.

15. M Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (Aldershot, Ashgate, 2000) at 286.

16. See ch 9.

17. See Hinch v Attorney General (Vic) (1987) 164 CLR 15. See also ch 8 for a full discussion of the “public interest principle” and the relevant case law. The Commission recommends that a “public interest” defence should continue to be available, albeit in a modified form: see Recommendation 20.

18. NSWLRC DP 43 at para 2.20-2.22.

19. “Justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 (Lord Hewart CJ).

20. See Recommendations 5 and 6.

21. See ch 8 at para 8.62-8.65 and Recommendation 21.

22. Chesterman (2000) at 281.

23. This is discussed in ch 4 at para 4.61-4.63. It has been said in some recent cases, noted in ch 4 at footnote 79, that the effectiveness of judicial warnings to the jury (which are neither disadvantageous nor costly) can be given weight in determining the tendency of a publication to prejudice proceedings.

24. See ch 4 and Recommendation 2.

25. See Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSWCA, No 40331/94, 15 September 1994, unreported) at 11 in which Chief Justice Gleeson referred to this observation made by Chief Justice Martin in Re The Evening News (1880) 1 LR (NSW) 211 at 240, cited with approval by Windeyer J in James v Robinson (1963) 109 CLR 593.

26. Attorney General (NSW) v Time Inc Magazine Co Pty Ltd at 11. Similarly, in Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 380, the observation was made that the publication of highly newsworthy material concerning alleged offences, or the trial of those offences, “may have a capacity to advance the commercial or other interests of various persons and corporations”. However, in the context of the administration of criminal justice, so long as proceedings are pending, “these interests, which may in themselves be perfectly legitimate, must yield to the higher interest of the due administration of justice”.

27. These, and other examples, are discussed at length in DP 43 at para 2.45-2.48.

28. NSWLRC DP 43 at para 2.30-2.31.

29. See, for example, Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 699 (Samuels JA).

30. The empirical research that seeks to measure media influence is examined at para 2.31-2.47.

31. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 281; see also D Howitt, “Pre-trial publicity: the case for reform” (1982) 2 Current Psychological Reviews 311.

32. This is in accordance with the present common law test. On the Commission’s recommended reformulated test, the sub judice rule would prevent publication of material which creates a substantial risk of prejudice.

33. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity (Justice Research Centre, Law and Justice Foundation of NSW, 2001). The project leader is the Commissioner in charge of this reference on Contempt by Publication, but the Commission was not involved in the project.

34. The report compares the strengths and weaknesses of various methodologies and puts forward the advantages of the case-study approach: Chesterman, Chan and Hampton at para 81-88.

35. Chesterman, Chan and Hampton at xi.

36. Chesterman, Chan and Hampton at xiv.

37. See Chesterman, Chan and Hampton at para 184.

38. The equivalent figures for generic publicity were slightly higher: Chesterman, Chan and Hampton at xv and para 228-229. “Generic publicity” has been defined as “media coverage that does not specifically relate to a defendant’s case, but is of such pervasiveness that it paints a defendant with an incriminating and indelible brush”: J C Doppelt, “Generic prejudice: how drug war fervor threatens the right to a fair trial” (1991) 40 American University Law Review 821 at 822.

39. In 12 of these trials, the verdict was at odds with the tenor of publicity; the authors have concluded that “[i]t seemed likely in six of these, possible in a further one, and unlikely in the remaining five, that publicity, while not determining the verdict, exerted an influence on one or more individual jurors”; in the remaining 18 trials, it seemed likely in one of these and possible in a further three, that publicity was determinative of the verdict; it seemed likely in a further five, possible in a further two, and unlikely in the remaining seven, that publicity, while not determining the verdict, exerted an influence on one or more individual jurors: Chesterman, Chan and Hampton at xvii-xviii.

40. Chesterman, Chan and Hampton at xvii.

41. Chesterman, Chan and Hampton at xvii.

42. Chesterman, Chan and Hampton at xvii.

43. Chesterman, Chan and Hampton at xx.

44. See Chesterman, Chan and Hampton at para 300-309.

45. See the cases discussed in Chesterman, Chan and Hampton at para 304-309.

46. However, the study found that different juries achieve markedly different levels of success in resisting the influence of highly prejudicial publicity, such as disclosing of prior convictions: Chesterman, Chan and Hampton at para 343.

47. These are set out at xxi-xxii: Chesterman, Chan and Hampton.

48. Chesterman, Chan and Hampton at para 236-243.

49. Chesterman, Chan and Hampton at xxi.

50. Chesterman, Chan and Hampton at xxii.

51. See M Chesterman, “Contemporary issues in the law of contempt”, paper presented at the 19th Annual Conference of the Australian Institute of Judicial Administration (21-23 September 2001, Hobart).

52. See NSWLRC DP 43 at para 2.66.

53. NZLC PP 37 vol 2 at para 7.46-7.57. The Commission selected 48 high-profile cases and interviewed 312 jurors.

54. NZLC PP 37 vol 2 at para 7.48.

55. NZLC PP 37 vol 2 at para 7.49.

56. New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) (“NZLC Report 69”) at para 467. In fact, the Commission said that this was “the only conclusion”.

57. NZLC Report 69 at para 467. The Commission did note, however, that “a change of venue can reduce that effect”.

58. NZLC Report 69 at para 467.

59. S Lloyd-Bostock, “The effect on juries of hearing about the defendant’s previous criminal record: a simulation study” (2000) Criminal Law Review 734 at 753.

60. Lloyd-Bostock at 753.

61. Lloyd-Bostock at 734.

62. N M Steblay, J Besirevic, S M Fulero and B Jimenez-Lorente, “The effects of pretrial publicity on juror verdicts: a meta-analytic review” (1999) 23(2) Law and Human Behavior 219.

63. Steblay, Besirevic, Fulero and Jimenez-Lorente at 220.

64. Steblay, Besirevic, Fulero and Jimenez-Lorente at 220.

65. Steblay, Besirevic, Fulero and Jimenez-Lorente at 228-229.

66. These and other remedies available in NSW are discussed in NSWLRC DP 43 at para 2.70-2.72.

67. J A Tanford, “The law and psychology of jury instructions” (1990) 69 Nebraska Law Review 71.

68. ALRC Report 35 at para 285. According to one newspaper article on jury deliberations, when a jury was told that their case had been discussed in the press and that they should ignore the press reports, their response was to make a special effort to find out what had been said in the press and to discuss its significance among themselves: ALRC Report 35 at para 285; C Petre, “View from the jury room” National Times (4-10 May 1984).

69. Chesterman, Chan and Hampton at para 216.

70. Chesterman, Chan and Hampton at xiv-xv.

71. Chesterman, Chan and Hampton at para 224.

72. Chesterman, Chan and Hampton at para 214-215.

73. “Prior restraints upon expression are a far more grievous impingement on the First Amendment than are subsequent punishments” for contempt: B C Schmidt, “Nebraska Press Association: an expansion of freedom and contraction of theory” (1977) 29 Stanford Law Review 431 at 431.

74. NSWLRC DP 43 at para 2.78-2.81.

75. See, for example, Stroble v California (1952) 343 US 181 at 198.

76. See Marshall v United States (1959) 360 US 310; Irvin v Dowd (1961) 366 US 717; Rideau v Louisiana (1963) 373 US 723; Estes v Texas (1965) 381 US 532; Sheppard v Maxwell (1966) 384 US 333.

77. Irvin v Dowd at 730 (Frankfurter J).

78. Sheppard v Maxwell at 362.

79. Sheppard v Maxwell at 363.

80. Sheppard v Maxwell at 361.

81. See NSWLRC DP 43, Appendix B.

82. Chesterman (2000) at 283.

83. R S Stephen, “Prejudicial publicity surrounding a criminal trial: what a trial court can do to ensure a fair trial in the face of a ‘media circus’” (1992) 26 Suffolk University Law Review 1063 at 1086.

84. See R v Glennon (1992) 173 CLR 592 at para 13 (Brennan J).

85. See Chesterman (2000) at 289. This is clearly implicit in R v Glennon at 601-606 (Mason CJ and Toohey J), at 611-617 (Brennan J).

86. The Act has come into operation as Schedule 5 of the Broadcasting Services Act 1992 (Cth).

87. Broadcasting Services Act 1992 (Cth) Sch 5 cl 91(1): a law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it would (1) subject an ISP or ICH to civil or criminal liability for hosting or carrying content where it was not aware of its nature; and (2) require an ISP or ICH to monitor, make inquiries about or keep records of content which it hosts or carries. For a discussion of this Act, and the regulation of the Internet industry generally, see J Eisenberg, “Defining the new content gatekeepers: local and international approaches to regulating internet content”, paper presented at Cyberlaw ‘99: Your Rights in the Internet World Conference (25-26 October 1999, Sydney, Communications Law Centre) and J Eisenberg, “Safely out of sight: the impact of the new online content legislation on defamation law” (2000) 6 University of New South Wales Law Journal Forum 23.

88. Broadcasting Services Act 1992 (Cth) Sch 5 cl 91(2).

89. Broadcasting Services Act 1992 (Cth) s 4(3).

90. NSWLRC DP 43 at para 5.60-5.61.

91. See generally Broadcasting Services Act 1992 (Cth) Sch 5 Pt 4.

92. See ch 4, Recommendation 6.

93. Australian Press Council, Submission.

94. NSWLRC DP 43 at para 2.55.

95. See discussion of the empirical evidence, and case law discussing the limitations of empirical evidence, in NSWLRC DP 43 at para 2.56-2.66.

96. NSWLRC DP 43 at para 2.67.

97. Chesterman, Chan and Hampton at xxii

98. NZLC PP 37 vol 1 at para 287.

99. NZLC Report 69 at para 467.

100. Australian Broadcasters, Joint Submission at 1.

101. Australian Broadcasters, Joint Submission at 2.

102. N R Cowdery QC, Submission.

103. Law Society of NSW, Submission at 2.

104. Victorian Bar Council, Submission at para 3-4.

105. D Norris, Submission at para 1. Mr Norris has responsibility for advising the Attorney General and the Supreme Court in contempt matters (pursuant to either Supreme Court Rules 1970 (NSW) Pt 55 r 11(6) or Pt 55 r 11(1)) and prosecution proceedings, including those on behalf of registrars of the Supreme Court.

106. Victorian Bar Council, Submission at para 3-4.

107. Chesterman, Chan and Hampton at para 503.

108. D Norris, Submission at para 2-3.

109. See ch 4, Recommendation 2.

110. See ch 5, Recommendation 5.