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LLM THESIS
Identification of a suspect before being charged;legitimate freedom of speech or a threat to a fair trial?
Craig Neilson Burgess BASchool of LawAcademic qualification for which this thesis is submitted:
Master of LawsYear submitted: 2005
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Keywords
Contempt of court subjudice naming suspects before charge effect of
prejudicial pre- trial publicity influence on jurors memory freedom of speech
open justice public interest public safety - fair trial evidential problems -
remedies for prejudicial publicity preferred approach.
Abstract
Identification of a person suspected of a heinous crime before being charged risks
prejudicing a fair trial. Present laws place this type of publicity outside the reach of
sub judice contempt. This thesis argues there should be a change in the law of sub
judice contempt making it an offence for the media to publish the fact that a person is
under investigation until the person has been charged.
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TABLE OF CONTENTS
TABLE OF CASES 6
TABLE OF STATUTES .. 12
1. INTRODUCTION 16
2. FREEDOM OF SPEECH v A FAIR TRIAL . 21
2.1 FREEDOM OF SPEECH212.1.1 Public Interest2.1.2 Public Safety2.1.3 Open Justice2.1.4 Statutory exception to the principle of open justice2.1.5 Other non-publication provisions
2.2 A FAIR TRIAL54
3. ANALYSIS OF PRESENT SUB JUDICE CONTEMPT LAW 64
3.1 WHEN ARE PROCEEDINGS SUB JUDICE ? 68
3.2 PRESENT SUB JUDICE CONTEMPT LAWIN OTHER JURISDICTIONS733.2.1 England3.2.2 New Zealand3.2.3 Ireland3.2.4 Proposals for the reform of the timing provisions.
4. INJUSTICE OF SUSPECT IDENTIFIED
BUT NOT CHARGED. 98 4.1 THE ATTORNEYS'-GENERAL ROLE IN ISSUING
CONTEMPT PROCEEDINGS 111
4.2 POLICE/MEDIA CO-OPERATION:AN UNHOLY ALLIANCE..113
5. REMEDIES FOR OVERCOMING THE EFFECTS OFPREJUDICIAL PUBLICITY 120
5.1 DELAYING THE START OF A TRIAL120
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5.2 CHANGING THE VENUE. 123
5.3 JUDICIAL INSTRUCTIONS.. 125
5.4 DISCHARGING A JURY BEFOREVERDICT. 129
5.5 CHALLENGE FOR CAUSE.. 131
5.6 PERMANENT STAY OF PROCEEDINGS 138
5.7 TRIAL BY JUDGE ALONE 146
5.8 CONCLUSION 150
6. ANALYSIS OF DATA.. 152
6.1 INFLUENCE ON JURORS ...155
6.2 EVIDENTIAL PROBLEMS REGARDINGPREJUDICIAL PUBLICITY... 161
6.3 MEMORY 1706.3.1 Short-term memory6.3.2 Long-term memory
6.3.3 Retrieval of long-term memory
6.4 US PRE-TRIAL PUBLICITY RESEARCH173
6.5 MEDIA ETHICS. 179
7. PREFERRED APPROACH 184
BIBLIOGRAPHY. 195
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TABLE OF CASES
Advertiser Newspapers Ltd v Bunting & Ors (2000) SASC 458
Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555
Attorney-General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318
Attorney General (NSW) v X [2000] NSWCA 199
Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695
Attorney-General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405
Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368
Attorney-General v News Group Newspapers Plc [1989] QB 110
Attorney-General v Sport Newspapers Ltd [1992] 1 All ER 503
Attorney-General v News Group Newspapers [1987] QB 1
Attorney-General v Times Newspapers [1973] Al ER 54
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Brown v Members of the Classification Review Board of the Office of Film andLiterature Classification (1998) 154 ALR 67
Brown v The Queen (1986) 160 CLR 269
Bush v The Queen (1993) 43 FCR 555
Callis v Gunn [1964] 1 QB 495
Channel Seven Adelaide Pty Ltd v Draper (2004) SASC 351
Chu Kheng Lim v The Minister for Immigration, Local Government and EthnicAffairs (1992) 176 CLR 1
Commercial Bank of Australia Ltd v Preson (1981) 2 NSWLR 554
Cunningham v The Scotsman Publications Ltd [1987] SLT 698
Davis v Baillie [1946] VLR 486
Daubney v Cooper [1829] 1 B & C 237
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Dietrich v R (1992) 177 CLR 292
DPP v Weis [2002] VSC 153
DPP v Williams & Ors [2004] VSC 209
Ex parte B (Unreported Central Criminal Court, Scott-Baker J, February 17, 1994)
Ex Parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd [1937] SR (NSW)242
Ex parte Jones [1806] 13 Ves 237 (33 ER 283)
Gallagher v Durack (1983) 152 CLR 238
Gilbert v The Queen (2000) HCA 15
Gilbert v Volkers (2004) QSC 436
Glennon v R (Unreported Court of Criminal Apeal Victoria, McGarvie and NathanJJ; Southwell J dissenting, 1990)
Hall v Associated Newspapers [1978] SLT 241
Harkianakis v Skalkos (1997) 42 NSWLR 22
Herald & Weekly Times Ltd v Braun [1994] 1 VR 705
Herald & Weekly Times Ltd v Magistrates Court of Victoria (1999) 2 VR 672
Herald & Weekly Times Ltd v Popovic (2003) VSCA 161
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
Jago v the District Court of New South Wales (1989) 168 CLR
James v Robinson (1963) 109 CLR 593John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81
John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) NSWCA 324
Imperial Group plc v Philip Morris Ltd (1984) RPC 293
Interlego AG v Croner Trading pty Ltd (1991) 102 ALR 379
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J v L & A Services Pty Ltd (no 2) [1995] 2 Qd R 10
Johansen & Chambers v R (1996) 87 A Crim R 126
Krulevitch v US (1949) 336 US 440
L v ABC & Ors (2004) NTSC 5
L v Paul Tudor-Stack (2005) NTSC 19
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lange v Atkinson [1998] 3 NZLR 424 at 477
Long v R (2002) QSC 054 (Unreported Dutney J, 18 February 2002)
Long v The Queen (2004) HCA Transcript 232 23 June 2004
London Artists Ltd v Littler [1969] 2 QB 375
M v DPP (Unreported June 3 1996, Dunford J)
Maxwell v The Director of Public Prosecutions [1935] 309 AC 317
McKinney v The Queen (1991) 171 CLR 468
Murphy, Murphy, Murphy and Murphy v The Queen (1987) 37 A Crim R 118
Murphy v R (1989) 167 CLR 94
Murphy v The Queen and, Murdoch v The Queen and Murphy v The Queen (1989)167 CLR 94
Nash v United States (1932) 54 F.2d 1006
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Nicholas v The Queen (1998) 193 CLR 173 Nine Network Australia Pty Ltd v McGregor & Ors (2004) NTSC 27
Noriega 917 F 2d 1543 (11 th Cir. 1990)
O'Neill v Australian Broadcasting Corporation, Roar Film Pty Ltd and Davie (2005)TASSC 26
OShane v John Fairfax Publications Pty Ltd (2004) NSWSC 140
Packer v Peacock (1912) 13 CLR 577
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Payton & Co Ltd v Snelling, Lampard Shoshana Pty Ltd v 10 th Cantanae Pty Ltd(1987) 79 ALR 279
Pearse v Pearse [1846] 1 De G & Sm 12; 63 ER 950
Pfenning v The Queen (1995) 182 CLR 461
Polyukhovich v The Commonwealth (1991) 172 CLR 501
R v Apostilides (1984) 53 ALR 445
R v Beaverbrook Newspapers Ltd [1962] NI 15
R v Chandler (No. 2) [1964] 2 QB 322
R v Channell (2000) NSWCCA 289
R v Clement [1821] 4 B & Ald 218; 106 ER 918
R v Cogley [2000] VSCA 231
R v Connell & ors (unreported Supreme Court of Western Australia, Seaman J, 26February 1993)
R v Cullen [1951] VR 335
R v Daily Mirror; Ex parte Smith [1927] 1 KB 851
R v Damic (1982) 2 NSWLR 750
R v D'Arcy (Unreported Supreme Court of Queensland, Douglas J, 17 October 2000)
R v D'Arcy (2001) QCA 325
R v D'Arcy (2003) QCA 124
R v Davidson (2000) 300 QCA 14
R v David Syme and Co Ltd [1982] VR 173
R v Davies [1906] 1 KB 32
R v George (1987) 29 A Crim R 380
R v Giddings [1916] VLR 359
R v Gilbert (2000) 74 ALJR 13
R v Glennon (1992) 173 CLR 592
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R v Grenning [1957] NZLR 906
R v K [2003] NSWCCA 406
R v Lee (1950) ALR 517
R v Lewis (1994) 1 Qd R 613
R v Long (2002) QSC 054
R v Long; ex parte A-G (Qld) [2003] QCA 77
R v Manson [1974] Qd R 191
R v Marshall (1986) 22 A Crim R 432
R v Maxwell (unreported Central Criminal Court, May 25, 1995)
R v McLachlan [2000] VSC 215
R v Parke [1903] 2 KB 432
R v Pomeroy [2002] VSC 178
R v Rawcliffe (1977) NSWLR 219
R v Savundranayagan and Walker [1968] 3 All ER 339
R v Sharpe and Stringer [1938] 1 All ER 48
R v Sherrin (1978) 20 SASR 164
R v Stuart and Finch [1974] Qd R 297
R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256
R v WA Newspapers Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16WAR 518
R v Yanner [1998] 2 Qd R
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650
Re JRL; Ex Parte CJL (1986) 161 CLR 342
Re the Evening News (1880) 1 NSWLR 211
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Reynolds v Times Newspapers [1998] 3 All ER 961
Ritz Hotel v Charles of the Ritz Ltd (1988) 15 NSWLR 158
Russell v Russell (1976) 134 CLR 495
Scott v Scott [1913] AC 417
SGIC v GIO (1991) 101 ALR 259
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Sterling v Associated Newspapers [1960] SLT 5
Stollery v Greyhound Racing Control Board (1973) 128 CLR 509
Television New Zealand v Solicitor-General [1989] 1 NZLR 1
The King v MacFarlane; ex parte OFlanaghan and OKelly [1923] 32 CLR 518
The Prothonotary v Collins (1985) 2 NSWLR 549
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
The People v Lehman (No. 2) [1947] Ir. R 137
The Queen v Glennon (1992) 173 CLR 592
The Queen v Hough (2002) WASCA 42
Tuckiar v R (1934) 52 CLR 335
U.S. v McVeigh, 918 F. Supp.1467 (1996)
U.S. v McVeigh (1997) 955 F. Supp. 1281
United States v Delli Paoli (1956) F.2d 319
Victoria v Australian Building Construction Employees and Builders LabourersFederation (1982) 152 CLR 25 at 56.
Walton v Gardiner (1993) 177 CLR 378
Webb and Hay v The Queen (1994) 181 CLR 41
Westpac Banking Corp v John Fairfax Group Pty Ltd (1991) 19 IPR 513
Woolmington V DPP [1935] AC 462
Zoneff v The Queen (2000) HCA 28
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TABLE OF STATUTES
CommonwealthEvidence Act 1995 (Cth)
s 57Federal Court of Australia Act 1986 (Cth)
s 17 (4)
Australian Capital TerritoryEvidence Act 1971
s 82s 83s 84
Juries Act 1967s 36A
Supreme Court Act 1933Pt VII
New South WalesCrimes Act 1900
s 578 (4)Criminal Procedure Act 1986
s 32s 33
Juries Act 1977
s 46s 68C
Northern TerritoryEvidence Act 1939
s 57s 59
Juries Acts 42
Queensland
Criminal Code 1899s 557s 577 (1)s 557 (9)
Criminal Law Amendment Act 2002Criminal Law (Sexual Offences) Act 1978
s 6s 7s 10 (3) b
Criminal Offence Victims Act 1995Jury Act 1995
s 47s 69A
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Justices Act 1886s 71
Juvenile Justice Act 1992Police Service Administration Act 1990Supreme Court Act 1995
s 223
South AustraliaEvidence Act 1929
s 68s 69A (5)s 69B (9)s 71B
Juries Act 1927s 7s 68
TasmaniaJury Act 1899
s 52Justices Act 1959
s 37
VictoriaCounty Court Act 1958
s 80Juries Act 2000
s 34Magistrates Court 1989
s 126Supreme Court Act 1986
s 18s 19 (b)
Western AustraliaCriminal Code Ch LXIVAEvidence Act 1906
s 11s 11A
CanadaCriminal Code
s 11 (f)s 469s 473
United KingdomContempt of Court Act 1981
Schedule 1 para. 1Schedule 1 para. 4
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s 2 (3)
United States of AmericaConstitution
First Amendment
Sixth AmendmentFourteenth Amendment
InternationalInternational Covenant on Civil and Political rights
Art 14Art 17Art 19
Europe ConventionArt 6
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The work contained in this thesis has not been previously submitted for a degree or
diploma at any other higher education institution. To the best of my knowledge and
belief, the thesis contains no material previously published or written by another
person except where due reference is made.
Signature:_______________________________________
Date:___________________________________________
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1. INTRODUCTION 1
This thesis addresses the long history of conflict between the media and the judiciary
over pre-trial publicity. In particular it will concentrate on the grey area concerning
the identification in the media of a suspect before the judicial process begins. It will
attempt to demonstrate that identification of a suspect before being charged risks
prejudicing a fair trial and there should be a change in the law of sub judice contempt
making it an offence for a media outlet to publish the fact that a person is under
investigation until that person is charged and has appeared in court. A phrase from
Willis Js judgment in R v Parke sums up the position succinctly:
It is possible very effectually to poison the fountain of justice before it begins to
flow. It is not possible to do so when the stream has ceased. 2
The genesis for this thesis arises from a number of recent criminal cases involving
high profile people, and others, accused of heinous crimes. These included former
Queensland Member of Parliament, Bill DArcy, who was eventually found guilty of
multiple counts of sexual abuse, popular national womens swimming coach Scott
Volkers, accused of sexually abusing former swimming pupils and the man
suspected of the horrific Childers backpackers hostel fire in which 15 people
perished. In all cases the accused were named and vilified by the media before they
had been charged with any crime. This excited some debate between civil libertarians
1 Although this thesis draws from a wide range of jurisdictions the reader will note a Queensland bias.This is because the basis of the thesis, that the media be restrained from publishing prejudicialmaterial before the judicial process begins, was most recently suggested by a Queensland lawyer. The
suggestion came after a number of sensational cases in that state involving prejudicial pre-trial publicity.2 R v Parke [1903] 2 KB 432.
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and the media concerning the ethics involved in publicly naming suspects. 3 The
debate could only be confined to ethics because the law of contempt as it stands does
not prohibit the naming of suspects, although the media do risk defamation
proceedings should the suspect be acquitted or if charges are not preferred for one
reason or other. The absurdity in allowing the media to disseminate highly
prejudicial information, such as revelations concerning prior criminal records or
confessions, at the pre-charge stage but not at the time charges are laid or when any
subsequent trial is held, would seem to demonstrate an anomaly in the sub judice
contempt law that is in urgent need of reform.
On the one hand, the media emphasises the right to freedom of speech, a
fundamental common law right. The High Court recognised two decades ago in a
contempt case that freedom of expression is of 'cardinal importance' and that 'speech
should be free, so that everyone has the right to comment in good faith on matters of
public importance, including the administration of justice, even if the comment is
outspoken, mistaken or wrong-headed'. 4 It is as a result of the exercise of this right
that the public's 'right to know' is satisfied.
On the other hand, all accused persons have a right to a fair trial. That right is
embedded in the common law. One element of a fair trial is that jurors exercise an
impartial mind and only consider the admissible evidence when deliberating on guilt
or innocence. In other words, jurors should not be influenced by extrinsic material
when exercising their function in the jury room. That proposition remains topical
because of the plethora of extrinsic material to which a contemporary juror may be
3 Terry O'Gorman,The issue of naming rights, The Courier-Mail, 5 September 1998, 27.4 Gallagher v Durack (1983) 152 CLR 238, 243 (Gibbs CJ, Wilson, Mason, Brennan JJ).
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exposed, including in more recent years from the Internet. Also US social
psychology experts are of the opinion that attitudes created by media publicity will
be remembered long after the details upon which they are based have begun to fade
and will affect the manner in which jurors will process the material put before them
at trial. 5
Superimposed on this tension between two cardinal stipulations, is the judiciary's
obligation to deliver justice according to law, and be seen to do that. One aspect of
this obligation is meeting society's expectation that a person accused of a serious
criminal offence will be brought to trial. 6 This entails that, save for truly exceptional
cases, Judges usually exercise their discretion to refuse a permanent stay of
proceedings, even where there has been substantial adverse publicity to an accused.
This necessarily casts a heavy obligation onto the media to avoid publicity which
will affect the fairness of the trial. For a conviction following an unfair trial is a
conviction obtained at too high a price. In fairness, most judges in Australia maintain
their experience of trials has shown that directions to juries to ignore prejudicial
material are an effective remedy. Faith is also placed in the fade factor in which it
is said jurors will be more likely to forget prejudicial material with the passage of
time.
The existing law does provide some other remedies for those named as suspects
before charges are laid but these are often unevenly applied. For example,
defamation is available but while a successful action may provide some monetary
compensation it cannot be guaranteed to restore reputation. Suppression orders are
5 Hugh Selby, 'The Pre Trial Use of Survey Evidence by Trial Judges' paper presented at the 28 th Australian Legal Convention, Hobart, September 1993 at 14.
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available but as noted in Chapter 2 some jurisdictions are more inclined to use them
others. Privacy is another issue with some recent cases in Australia and the United
Kingdom opening the door to a tort of invasion of privacy. All these issues are
worthy of investigation but are beyond the scope of this thesis which is confined to
simply arguing the case for legislative changes to the law of sub judice contempt.
Therefore, through an extensive review of relevant case law and studies this thesis
has developed the argument that freedom of speech pre-charge should be postponed
for as long as it takes for an accused person to receive a fair trial. That is, there is no
denial of free speech just a postponement of prejudicial publicity during the crucial
stage before an accused is charged and appears in court. The prohibition should
extend to the naming of any alleged suspect because by linking the person with the
prejudicial material, such as alleged confessions or prior convictions, the damage to
the accused is magnified. This prohibition is not only in the best interests of the
defendant who has a right to a fair trial but also the prosecution and the public who
have a right to secure a verdict from judges or jurors that is free from prejudice.
This thesis will develop this argument by defining the difficulties in balancing the
opposing principles of Freedom of Speech versus a Fair Trial. It will also analyse
present sub judice contempt law in Australia and other common law countries and
outline why the contempt law should be changed in the interests of a fair trial. The
injustice in suspects being identified but not charged will be detailed as well as the
strengths and weaknesses of the various remedies that are currently available to
overcome the effects of prejudicial publicity. The psychological effect prejudicial pre
6 R v Glennon (1992) 173 CLR 592; Murphy v R (1989) 167 CLR 94; R v Lewis (1994) 1 Qd R 613.
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trial publicity has on jurors is analysed as well as the results of research in this area.
The thesis draws on all areas to justify a preferred approach whereby the laws of sub
judice should extend to the pre-charge time frame to prevent persons considered to
be under suspicion by law enforcement authorities from being publicly named in the
media in the interests of a fair trial.
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2. FREEDOM OF SPEECH v A FAIR TRIAL
2.1 FREEDOM OF SPEECH
The media often define freedom of speech as the right to know. This thesis
acknowledges that right. But it also recognizes there are occasions when the publics
right to know has to be curtailed in the wider public interest such as the proper
administration of justice. For example, as this thesis argues, prohibiting the naming
of a suspect and any other prejudicial material before charges are laid. Most people
recognise the desirability of freedom of speech. Some mistakenly believe it to be a
constitutional right in Australia. But how does one define free speech? Perhaps the
shortest definition would be the expression of thought through the spoken word. The
Australian Law Reform Commission has said there is no doubt that freedom of
expression is one of the hallmarks of a democratic society, and has been recognised
as such for centuries. 7 Butler has succinctly described free speech as 'speech that is
not subjected to regulation by the State'. 8 According to the celebrated English jurist
Lord Denning it means that everyone should be free to think his own thoughts and to
have his own opinions and to give voice to them so long as he does not speak ill of
his neighbour or incite anyone to violence. 9
A common example given for the reasons for restrictions on free speech is the
scenario where a person shouts, without justification, 'fire' in a crowded theatre
thereby causing panic and potential injury. In those circumstances most people
7 Australian Law Reform Commission, Contempt (Report 35, 1987) at para 242. See also Hinch v Attorney General (1987) 164 CLR at 57 (Deane J): "Freedom of public discussion of matters oflegitimate public concern is, in itself, an ideal of our society".8 Butler D and Rodrick S, Australian Media Law, 2nd ed, Lawbook Co , Sydney 2004 at 3.
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would agree that the law should prohibit an action such as that. Australia, under its
Constitution, does recognise the right to trial by jury. 10 But it does not have a written
Bill of Rights guaranteeing freedom of speech. Until the 1992 decisions of the High
Court of Australia in Nationwide News Pty Ltd v Wills 11 and Australian Capital
Television Pty Ltd v Commonwealth 12 no constitutional protection of freedom of
speech had been recognised. There was however, what was known as a 'residual
liberty' that is the freedom existed to the extent that legislation and the common law
did not restrict it. The 1994 Theophanous 13 case created a constitutional defence for
publications concerning political and government matter. The defence could apply
where defendants were unaware that publications were false, had not published
recklessly without caring about truth or falsity, and publication was reasonable in the
circumstances. Theophanous also expanded common law qualified privilege to cover
media publications about political or government matters. 14 For such matters,
defendants need not have met the constitutional defences reasonableness
requirement. But the defence did not survive. The 1997 Lange 15 decision confirmed
the constitutional protection for political communication, but it has since been
narrowed by a limitation of government or political matters 16 to those of the
electoral and parliamentary sense, such as discussion about political candidates. It
does not extend generally to matters of public interest. 17 Lange therefore, impacts on
my thesis that a statute should be invoked preventing the media from naming people
suspected of a crime. This is because if a politician is named in the media of being
9 Sir Alfred Denning, Freedom under The Law, Hamlyn, London, 1949 at 35.10 Australian Constitution s80.11 (1992) 177 CLR 1.12 (1992) 177 CLR 106.13 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.14 Ibid.15
Lange v ABC (1997) 189 CLR 520.16 See Andrew T Kenyon, Lange and Reynolds Qualified privilege: Australian and English Defamation Law and Practice, (2004) 28 Melbourne University Law Review, 406, 416.
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suspected of committing a crime then an argument could ensue over whether the
matter touches on discussion about political candidates or is merely of public
interest. Also as Chesterman 18 points out Australian statute law contains further
examples of free speech protection arising within the law without being clearly
labelled as such. For example, under the Commonwealth law dealing with racial
vilification, racist speech occurring 'otherwise than in private' is unlawful, but no
liability arises if the relevant speech is uttered 'reasonably and in good faith' in the
course of 'any statement, publication, discussion or debate made or held for any
genuine academic, artistic or scientific purpose or any other genuine purpose in the
public interest'.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR)
adopted by the United Nations in 1966 and ratified by Australia in 1991 declares:
1. Everyone shall have the right to hold opinions without interference.
2. 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.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and
are necessary:
(a) For respect of the rights or reputation of others;
17 See eg, Amalgamated television Services Ltd v Marsden (2002) NSWCA 419 (unreported).18 Chesterman M, 'Freedom of Speech in Australian Law: A delicate plant , Ashgate, Dartmouth, 2000
at 9.
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(b) For the protection of national security or of public order, or of public
health or morals.
However, Article 19 is qualified by other rights such as the right to reputation Article
(17) and Article (14) the right to a fair hearing before the courts which conflicts with
the right to freedom of speech. Therefore by exercising one's right to freedom of
speech one can conceivably threaten another person's right to be presumed innocent
until proved guilty according to law which goes to the heart of my thesis. However,
as Chesterman points out the ICCPR created no enforceable right in Australian
domestic law. At most it provided encouragement to judges to develop the common
law in conformity with Article 19. 19 This was a point notably taken by Kirby P to
support his decision in Civil Aviation Authority v Australian Broadcasting
Corporation. 20
Eric Barendt has described free speech, when it publicises or examines the workings
of the legal process, as one of those complicated areas of law where the values of
free speech compete with other rights and interests. 21 This theme is underscored by
Walker who writes that 'on the one hand there is public interest in a fair and impartial
judicial proceedings and the maintenance of the dignity and authority of courts and,
on the other, the public interest in the freedom of the media to report and comment
on matters of interest to the public and to subject the administration of justice to
critical analysis'. 22 This was a situation recognised by the celebrated Bread
Manufacturers' case where Jordan CJ said that where there is no intention to
19 Chesterman M, Freedom of Speech in Australian Law: a delicate plant, Ashgate, Dartmouth, 2000at 3.20 (1995) 126 FLR 26 at 42-45.21 Barendt, E., Freedom of Speech Clarendon Press, New York, 1985 at 214.
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prejudice a fair trial, the rule that publication of material tending to prejudice a party
in court constitutes contempt is not inviolate:
The discussion of public affairs and the denunciation of public abuses, actual or
supposed, cannot be required to be suspended merely because the discussion or
denunciation may, as an incidental but not intended by-product, cause some
likelihood of prejudice to a person who happens at the time to be a litigant. 23
In many respects the Bread Manufacturers' case is the foundation of the law of
contempt as it relates to publications which have an impact on cases coming before
the courts. The judgment has had a profound effect on the law of contempt, not only
in Australia but elsewhere, especially in the United Kingdom. The issue was whether
the respondents, in publishing articles concerning the bread trade which were
incidentally critical of the applicant's activities in that trade, had committed a
contempt in relation to civil proceedings for libel and conspiracy in which the
applicant was a defendant. Some articles had been published after these proceedings
had been commenced. His Honour sought to balance the competing public interests:
one, the need to protect the integrity of the administration of justice, and the other,
the protection of freedom of expression, especially when that freedom of expression
is exercised in relation to a topic which is, or should be, of concern to the public or a
section of the public. Until the High Court decision in Hinch v Attorney-
General(Vic) 24 there were two views as to how the principle should be applied, a
normative view and a balancing view.
22 Walker, S Media Law:Commentary and Materials Lawbook Co, Sydney 2000 at 526.
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Although the Bread Manufacturers' case concerns an alleged contempt in civil
proceedings, Hinch 25 found the judgment applies to publications prejudicial to
criminal proceedings as well. The Hinch case underscores my thesis as it relates to
the damage pre trial publicity in a high profile case can do the concept of a fair trial,
especially when a suspect is named and vilified. Hinch involved a criminal trial and
the contempt conviction was affirmed. In that case, Hinch, an infamous Melbourne
radio talkback host, commented adversely about a Catholic priest, a Father Glennon,
who had been charged with serious sexual offences involving young people and had
been bailed to appear before Melbourne Magistrate's Court. In a series of broadcasts
Hinch highlighted the inappropriateness of Father Glennon to continue to occupy the
position of governing director of a Foundation that organised children's camps. To
emphasise this point Hinch referred to Father Glennon's prior conviction and
sentences of two years imprisonment for indecent assault on a young girl and to a
charge on two counts of rape involving a 12-year-old boy on which Glennon had
been acquitted. Perhaps if Hinch had confined his remarks to the inappropriateness of
Father Glennon continuing to hold the position that he did, Hinch would have
avoided a contempt conviction but the High Court made it plain he had 'crossed the
line' by mentioning the prior convictions of the accused. This statement by Deane J
summed up the Court's thinking:
In a case where the publication is in the mass media and is directed solely to the
merits of the very issue to be determined in the pending proceedings (e.g. the guilt or
innocence of an accused), there would be no countervailing public interest
23 Ex Parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd [1937] 37 SR (NSW) 242 at 249
per Jordan CJ.24 (1987) 164 CLR 15.25 (1987) 164 CLR 15.
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consideration which might effectively outweigh the detriment of a clear tendency to
prejudice the due administration of justice. 26
This passage tends to show the High Court judges were vitally concerned to
demonstrate the limits of the Bread Manufacturers' principle .They established that
the principle cannot be invoked to excuse a publication that canvasses matters
directly relating to an accused's guilt or innocence. A more common occurrence of
possible prejudice to an accused is the reporting of committal proceedings or bail
applications which may prejudice the minds of potential jurors at any subsequent
trial. In this case it is a situation where the law says, on balance, the wider interests
of the administration of justice are better served by allowing publicity. The judges in
Hinch confirmed that a balancing test must be applied by weighing the public interest
in the administration of justice and the public interest in freedom of speech. The
extent of the balancing exercise was explained by Wilson J that:
It is important to emphasise that in undertaking a balancing exercise the court does
not start with the scale evenly balanced. The law has already tilted the scales. In the
interest of the due administration of justice it will curb freedom of speech, but only
to the extent that is necessary to prevent a real and substantial prejudice to the
administration of justice. 27
Be that as it may, the High Court in Hinch did not give much assistance in
determining when a publication referring to criminal proceedings is likely to be
found in the public interest.
26 Ibid at 52.
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28
In R v Sun Newspapers Pty Ltd 28 a publication about a criminal trial was found to be
potentially prejudicial to another criminal trial. The publication did not amount to
contempt however, on the basis of the public interest principle, since it did not refer
to the second trial, and its prejudicial effect was therefore an incidental by-product of
a discussion of a matter of public importance.
But in another case a publication that reported allegations of race fixing in the horse
racing industry included material obtained from a lawful telephone tap. The New
South Wales Court of Appeal 29 took the view that this was a matter of public interest
but because Commonwealth legislation prevented the disclosure of material gained
from telephone interceptions, the legislature had already given priority to the public
in keeping such communications confidential, and it was not for the courts to permit
a different public interest to prevail. This point was determined more recently by the
New South Wales Supreme Court where a newspaper that canvassed issues
concerning the Sydney illegal drug trade was held not to have been in contempt of
court even though an accused who was awaiting trial was named in the articles. 30
Barr J said although the article discussed the accuseds current activities, including
an assertion he was a major heroin distributor, and details of his personal life, there
was no discussion of the facts or circumstances of the charges pending against him.
His guilt or innocence of these charges was not mentioned. 31 Therefore, according to
Barr J although a publication may have a tendency to prejudice criminal proceedings
it did not mean the defence of public interest would be lost. The judgment was
27 (1987) 164 CLR at 41-2.28 (1992) 58 A Crim R 28 281.29
John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81.30 Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318.31 Ibid at para 128.
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upheld on appeal. 32 All three judges of the Court of Appeal in Attorney-General
(NSW) v X (2000) agreed that the newspaper articles gave rise to an implication of
guilt and therefore had a tendency to interfere with the administration of justice. 33
However, Spigelman CJ and Priestley J decided that the Bread Manufacturers'
principle was applicable, while Mason J dissented.
Nevertheless both the majority and minority judgments confirmed that the Bread
Manufacturers principle is concerned with the process of reconciling two conflicting
public interests. That is, the public interest in the administration of justice and the
interest of the public in being informed about vital matters. 34 The majority in
Attorney General (NSW) v X held that the authorities do not support the promulgation
of a rule that wholly precludes the conduct of a balancing exercise where the
offending publication implies guilt, or suggests guilt, or canvasses matters directly
related to the issue of guilt. According to Spigelman CJ there is no pre-determined
balance in favour of the administration of justice for cases involving publications that
fall under one or more of those categories. 35
In reaching that conclusion his Honour relied heavily on the High Court formulation
of an implied freedom of political communication as another ground to reject a pre-
determined balance rule. 36 Having decided that a balancing test is to be exercised, the
Chief Justice held that the finding of Justice Barr was reasonably open as a matter of
32 Attorney General(NSW) v X [2000] NSWCA 199.33 Attorney General (NSW) v X [2000] at para. 70 (Spigelman CJ), at para 155, 221 (Mason P.).34 Attorney General (NSW) v X [2000] 199 at para. 9 (Spigelman CJ), at para 175 (Mason P.).35 Attorney General (NSW) v X [2000] at para. 111 (Spigelman CJ).36
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd vCommonwealth(No 2) (1992) 175 CLR 106; Lange v Australian Broadcasting Corporation (1997)189 CLR 520.
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law. In dissent Justice Mason emphasized the importance of the right to a fair trial. 37
It was his view that the protection of the right to a fair trial is the touchstone of the
free and democratic society that the Bread Manufacturers' principle is designed to
advance. He also held that Hinch and subsequent cases that considered the public
interest principle establish that the defence cannot be used to excuse a publication
that has the tendency to interfere with the administration of justice, where the
interference consists of an implication of guilt or the canvassing of matters directly
related to the central issue of guilt. 38
It would seem then that the majority judgment in Attorney General (NSW) v X differs
from some of the views expressed in Hinch, that in the balancing of the conflicting
interests, the courts should tilt the scales in favour of protecting the due
administration of justice and where the material is directed at the guilt or innocence
of an accused person, it would be difficult to outweigh the public interest in a fair
trial. This is evident in the judgment of Spigelman CJ who wrote that since Hinch
and subsequent cases that applied the Bread Manufacturers' principle, the High
Court has recognized immunity in the Commonwealth Constitution with respect to
the freedom of communication. Consequently the law of contempt must adapt to this
constitutional immunity. 39 Therefore it would seem to be that the Chief Justices
view is that courts must now attribute greater weight to the freedom of public
discussion when conducting a balancing test. But in the final analysis Attorney
General (NSW) v X has not provided guidance on how the Bread Manufacturers
principle might apply to publications that deal specifically with the facts of a pending
37 Attorney General (NSW) v X [2000] at para. 178-185 (Mason P).38 Attorney General (NSW) v X [2000] at para. 195 (Mason P.).
39 Attorney General (NSW) v X [2000] at para. 112 (Spigelman CJ).
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trial. This was because in this case there was no discussion of the facts and
circumstances of the charges pending against the accused.
The process of a fair trial has often been described as the balancing of conflicting
interests. 40 That is the right of a fair trial must be balanced against the interests of the
community in securing a conviction. This involves a value judgment which does not
always provide for consistency in judicial views. The difficulty is that the conflicting
values are incommensurable and cannot be assessed on the same scale. An example
can be found in the tests of when the probative value of evidence can be said to
outweigh its prejudicial effect. McHugh J said of this test, in the context of the
admission of propensity evidence:
Admitting the evidence will serve the interests of justice only if the judge concludes
that the probative force of the evidence compared to the degree of risk of an unfair
trial is such that fair-minded people would think that the public interest in adducing
all relevant evidence of guilt must have priority over the risk of an unfair trial. 41
However, there has been some questioning of the appropriateness of a balancing
approach in the contest of criminal justice. For example Professor Andrew
Ashworths criticism that 'balance' leads to 'sloppy reasoning'.42
Professor Ashworth
is also critical of the jurisprudence of the European Court of Justice and the House of
40 The Queen v Glennon (1992) 173 CLR 592; Jago v The District Court of New South Wales (1989)
168 CLR 23; Hinch v Attorney-General (Vic) (1987) 164 CLR 15.41 Pfennig v The Queen (1995) 182 CLR 461 at 529.42 Ashworth A., Crime, Community and Creeping Consequentialism (1996) Crim LR 220 at 229.
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Lords with respect to Article 6 of the European Convention on the basis that it tends
to weaken the strength of the protection of the right to a fair trial. 43
To accept these rights are not absolute is not to concede that they may be balanced
away by being compared with a general public interest and put in second place. 44
The problem when rights are granted in absolute terms, the legal process of
determining how and in what circumstances they are to apply is carried out in a
vacuum. When the 'whole' of a right is granted by a Bill of Rights, the text gives no
guidance about the priorities that are to be reconciled or that govern, when one right
conflicts with another. For example, the battle between the First Amendment 45 and
the Sixth Amendment 46 of the US Bill of Rights has been waged in the courts and
seemingly won by the First Amendment. According to at least one legal
commentator that victory has enabled the media to exert a corrupting influence over
trials and has had a pervasive and detrimental effect on the rights of accused
persons. 47
One need not look far to see several examples of the veracity of this assertion in the
trials of people like O.J. Simpson, Michael Jackson, William Kennedy Smith and the
Menendez brothers which were all attended with massive and manifestly prejudicial
43 Ashworth A., Criminal Proceedings after the Human Rights Act: The First Year (2001) Crim LR855 at 864-867.44 Ibid 866.45 The First Amendment relevantly provides: "Congress shall make no law abridging the freedom ofspeech or of the press".46 The right to a fair trial arises under the Sixth and Fourteenth Amendments. The Sixth Amendmentrelevantly provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall have beencommitted". The Sixth Amendment is applicable to the States by virtue of the Fourteenth
Amendment.47 O'Callaghan David J., 'The United States Experience of Unfettered Speech and Unfair Trials: ACase Against an Australian Bill of Rights', (1998) 72 Australian Law Journal at 958.
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pre-trial publicity. Such cases lead to the conclusion that from a justice point of view,
prevention is better than a cure. In summary, what all commentators acknowledge is
that there is a broad range of legitimate opinion about which interest should prevail
in the various factual circumstances that arise for decision. However, the weight of
judicial authority is that measures that are clearly necessary for due process of law
should take precedence over freedom of speech. This is particularly true in relation to
criminal trials where an individual's liberty is at stake and where the public have an
interest in securing the conviction of persons guilty of serious crime. The Law
Commission of New Zealand in supporting this position made the following
comment:
When a conflict arises between a fair trial and freedom of the 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 legal
proceedings. 48
This comment reinforces the argument of this thesis that publishing a suspects name
before a charge is brought threatens a fair trial and therefore the freedom of speech
principle should yield to the proper administration of justice.
2.1.1 Public Interest
At common law, a publication may have a tendency to cause prejudice to
proceedings, but may be found not to amount to contempt, on the basis that it:
48 New Zealand Law Commission, Juries in Criminal Trials: Part Two (Preliminary Paper 37, 1999)("NZLC PP 37") vol 1 at para 289.
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relates to a matter of public interest, or promotes the public interest in some
other way; or
Is a fair and accurate report of proceedings held in open court, or, possibly a
fair and accurate report of parliamentary proceedings. 49
This thesis shall only examine the first ground of exoneration, that is, the 'public
interest principle' as the fair and accurate report of proceedings held in open court
does not relate to my thesis. In relation to the public interest principle it is pertinent
to address the question: what is meant by the term 'public interest'? For many
commentators the term is commonly used but is generally undefined. Lord Denning
MR in London Artists Ltd v Littler 50 said that there is 'no definition in the books as to
what is a matter of public interest'. Nevertheless he went on to describe it as
'whenever, a matter is such to affect the people at large, so that they may be
legitimately interested in, or concerned at, what is going on; or what may happen to
them or others; then it is a matter of public interest on which everyone is entitled to
make a fair comment'. 51
But as Mo 52 has pointed out that while there is public interest in the discussion of a
matter of public concern, there is also a public interest in confidentiality 53 and there
is also public interest in restricting the media for the purposes of protecting the
administration of justice. There is also some ambiguity over the tests or rules to be
49 See Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 714; Hinch v Attorney General (1987) (Vic) 164 CLR 15 at 26 and 83.50 [1969] 2 QB 375.51
ibid 391.52 Mo, John S., 'Freedom of Speech v Administration of Justice' (1992) 9 Australian Bar Review 216.53 Westpac Banking Corp v John Fairfax Group Pty Ltd (1991) 19 IPR 513.
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employed when deciding on balancing these interests in contempt of court cases. 54
But in a sense the law on contempt has always imposed a restriction on freedom of
speech. As McHugh JA stated in The Prothonotary v Collins 55 that when 'the
expression of an opinion or the communication of information is likely to interfere
with the fair trial of a criminal charge, the common law has very much preferred the
right to a fair trial upon legally admissible evidence'. Journalists often believe that
they have a duty to tell their readers about a matter of public interest, and that their
readers have an interest in receiving this information.
In England that duty had never been recognized by the courts until the Reynolds
case.56 The then Lord Chief Justice, Lord Bingham, said in the Court of Appeal that
as it was the task of the news media to inform the public and engage in public
discussion of matters of public interest, it was to be recognized as its duty. However,
public interest means more than a prurient desire to know the identity of an accused.
The desire to gossip about the motive of an accused does not justify the undermining
of the presumption of innocence. Premature publication of an accused's identity is
inconsistent with the presumption of innocence and should only occur if justified by
some right more deserving of protection. For example, publications dealing with
paedophilia in the context of a community debate may be found to have a tendency
to interfere with particular criminal proceedings against a person accused of child
molestation.
54 For example, in Attorney-General (NSW) v X [2000] NSWCA 199 the court was split 2-1 whetherthe balancing of conflicting interests was a question of law while Priestley JA in Registrar of theCourt of Appeal v Willesee (1985) 3 NSWLR 650 at 681-3 identified two 'normative' and ' balancing '
approaches to the reconciliation of competing public interests. 55 (1985) 2 NSWLR 549 at 562.56 Reynolds v Times Newspapers [1998] 3 All ER 961.
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However, the court may decide that the publication does not amount to contempt on
the grounds that it relates to a matter of public interest which outweighs the
detriment it may cause to the criminal proceedings in question. This was the situation
that arose in NSW in 1997 when the then Police Minister Paul Whelan gave a news
conference on the subject of paedophilia. As a result of the comments made by Mr
Whelan two sexual offences trials were aborted. The Attorney General did not
prosecute Mr Whelan for contempt, presumably taking the view that Mr Whelan's
comments were made as part of an ongoing debate of public interest and that they
were not directed at particular legal proceedings. 57 This ground of exoneration is
commonly referred to as the 'public interest principle' or the Bread Manufacturers'
principle referring to the first Australian case where it was authoritatively
formulated. This principle, as previously discussed, recognises that there is
sometimes a greater interest that justifies a publication despite the fact that
publication would otherwise attract sub judice liability because of its tendency to
prejudice proceedings. 58
Since then the High Court has considered the public interest principle only once in
Hinch v Attorney General (Vic). 59 It clarified that the public interest principle may
apply to publications relating to criminal proceedings. However, it took a different
approach to that taken by the Bread Manufacturers' case and broadened the scope of
the principle. It recognised that the principle could apply to proceedings that dealt
specifically with the facts of the particular proceedings in question. It was not
confined to publications relating to a general discussion, and it was not essential to
the application of the principle that the potential prejudice to proceedings was
57 Piers Akerman, 'Free to speak up for justice', Daily Telegraph , 1st ed, 18 September 1997, 11.58 Ex Parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242.
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incidental. The court emphasised instead that each case requires a balancing exercise
between the competing public interests in the administration of justice and the
freedom of discussion of public affairs, in order to determine whether or not
contempt has been committed. However, some of the Justices of the High Court in
their judgments qualified the balancing approach to the public interest principle.
Firstly, where the contempt is intentional the public interest principle cannot be used
to avoid liability for contempt. 60 However, the court did not base its decision on this
proposition because on the facts in Hinch it would be possible to argue that at least
the third of his broadcasts was done with the knowledge that it may have a tendency
to prejudice the accused's trial given that the Attorney General had already instituted
proceedings for contempt against Hinch for his first two broadcasts on the matter.
However, the court did not discuss the intention of Hinch in considering the public
interest principle, despite general suggestions that an intention to prejudice
proceedings may exclude the application of the public interest principle. As the
NSWLRC discussion paper says it remains unclear whether material which is
published with an intention to prejudice, or with the knowledge that it may prejudice
particular proceedings, could ever be found not to constitute a contempt on the basis
of the public interest principle. 61
Secondly, where the material is directed at the guilt or innocence of an accused, the
High Court held that the public interest required to outweigh the public interest in a
59 (1987) 164 CLR 15.60
Ibid, (Deane J), at 52-53 (Toohey, J), at 69-70 (Wilson, J) at 43 and (Gaudron, J) at 86.61 New South Wales Law Reform Commission, Discussion Paper 43, Contempt by Publication (2000)at 270.
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fair trial would have to be very substantial. 62 Justice Deane stated that where the
publication implies or suggests the guilt of the accused, or canvasses matters directly
related to the issue of guilt, the public interest defence would not be available. 63 This
definition would seem to accord with Long's 64 case in that material which seemed to
suggest his guilt by virtue of publication of his prior convictions and his alleged prior
offences before he had been charged. Justice Deane, without deciding the issue,
noted that reference to the accused's previous convictions on its own would have
been sufficient to place the broadcast beyond justification on public interest
grounds. 65 Certainly it was not necessary for Hinch to mention the accused's
convictions as he could simply have referred to the current charges being faced by
the accused to alert the public to the danger of child abuse and the fact that the
accused continued to hold a senior position in a children's organisation. Statements to
that effect would probably have not amounted to contempt since they were simply
the bare facts of the case. Since the Hinch case courts have reiterated the High
Court's formula of the public interest principle as requiring a balancing exercise
between the public interests in freedom of discussion and in the fair administration of
justice. 66 However, publications that have been found to be in the public interest have
not referred specifically to the facts of relevant criminal proceedings so the courts
have not had to provide much more guidance about this issue. The NSWLRC has
provided some guidance in its recommendation 20 67 of its report Contempt by
62 Hinch v Attorney General (Vic) (1987) 164 CLR 26-27 (Mason CJ).63 Hinch v Attorney General (Vic) (1987) 164 CLR 58-59.64 R v Long (2002) QSC 05465 Hinch v Attorney General (Vic) (1987) 164 CLR 58.66 See R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; R v WA Newspapers Ltd; Ex parte Director of Public Prosecutions(WA) (1996) 16 WAR 518.67 New South Wales Law Reform Commission Report 100 Contempt by Publication (2003)
Recommendation 20: Legislation should provide that a person charged with sub judice contempt onaccount of responsibility for the publication of material should not be found guilty if:(a) the material relates to a matter of public interest;
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Publication where it proposes that a balancing approach may be the best way to deal
with situations that involve competing public interests.
This statutory approach recommendation contains the main elements of the
principles developed by the High Court in Hinch. However, according to the
NSWLRC 68 it defines more precisely than does the case law what matters need to be
weighed against each other. The case law refers to the protection of the public
interest in the integrity of the criminal justice system or public interest in a fair trial
as the main interest against which others must be weighed. The recommendation
defines how this public interest might be harmed; for instance, the creation of a risk
of influence on those involved in pending legal proceedings. Of interest to my thesis
is that the NSWLRC recommends that in cases where the media invoke the public
interest in the free discussion of the subject matter of the published material, it
should also be relevant for courts to consider whether such discussion would suffer
significantly if the publication were delayed until the risk of prejudice has ceased. If
the publication could have been postponed for a few days, for example, and if so
delayed could still have made a contribution to the public discussion, it is arguable
that the balance should be weighed in favour of the harm rather than the benefit. 69
This strongly supports the view that by not reporting that an accused is under
investigation freedom of speech is not denied it is merely postponed for as long as it
takes for an accused person to receive a fair trial and that any balancing exercise
and(b) the public benefit from the publication of the material, in the circumstances in which it was
published, and from the maintenance of freedom to publish such material, outweighs the harm causedto the administration of justice by virtue of the risk of influence on one or more jurors, potential
jurors, potential jurors, witnesses, potential witnesses and/or litigants created by the publication.68 Ibid, 203.69 Ibid.
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should be weighted in favour of the accused's presumption of innocence not the other
way around. `
2.1.2 Public Safety
Some in the media have suggested the publication of prejudicial information about
alleged dangerous criminals is not only in the public interest but a matter of public
safety. For example, if a person accused of a particularly violent crime is at large
then it would demonstrably be in the public interest to publicise the fact that the
person has a history of violence and should not be approached. There has also, been a
case in Victoria where the media were allowed to warn the public of housebreakings
by the accused in the course of his flight. 70 On the other side of the coin there has
been at least one occasion where this privilege has been abused.
In Attorney General (NSW) v Macquarie Publications Pty Ltd, 71 an accused was
charged with sexual offence against a young person. When released on bail, he
assaulted a woman and was re-arrested but escaped from custody. He also had
several previous convictions. The local newspaper published a photograph of the
accused and an article about him, which mentioned his criminal history. In his
affidavit to the court the editor sought to justify the publication by stating that he
wanted to inform the citizens of the town that the accused was dangerous and that he
had hoped that someone would provide information to the police concerning his
whereabouts. However, the person who completed the article after the editor had left
for the day received information from the police shortly before the publication
70 Davis v Baillie [1946] VLR 486 at 495.71 (1988) 40 A Crim R 405.
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deadline, that the accused had been apprehended. The NSW Appeal Court upheld the
contempt conviction and the newspaper was fined $10,000 and ordered to pay costs.
The Australian Law Reform Commission has considered whether it is necessary to
provide in legislation for a 'public safety' defence as a ground of exoneration from
liability for contempt. 72 The Phillimore Committee in the United Kingdom did not
consider it desirable to introduce a 'public safety' defence. It took the view that the
sorts of situations attracting a 'public safety' defence would rarely arise and it would
simply lead to greater uncertainty to introduce into legislation a defence to meet this
situation. The Committee considered it more appropriate to leave considerations of
public safety as a factor mitigating penalty on conviction for contempt. On the other
hand, the ALRC recommended that legislation expressly provide for a 'public safety'
defence rather than leaving it to the discretion of the prosecuting authority. It said the
terms of the defence should be limited to protecting publications which are
reasonable or desirable to facilitate the arrest of a person, to protect the safety of a
person or of the public generally, or to facilitate investigation into an alleged
criminal offence. 73
More recently The New South Wales Law Reform Commission has recommended
'public safety' as a ground of exoneration for the media. 74 After considering
submissions from media organisations and other interested parties the Commission
recommended:
72 See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt ofCourt (HMSO, London, Cmnd 5794, 1974) at para 143-145; Australian Law Reform Commission,Contempt (Report 35, 1987) at paras 302, 330.73 See Australian Law Reform Commission, Contempt (Report 35, 1987) Appendix A ( Administrationof Justice (Protection) Bill 1987 (Cth) cl 31).
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Legislation should provide that a person charged with sub judice contempt on
account of responsibility for the publication of material should not be found guilty if
the publication the subject of the charge was reasonably necessary or desirable to
facilitate the arrest of a person, to protect the safety of a person or of the public, or to
facilitate investigations into an alleged criminal offence. 75
Unlike the ALRC the NSWLRC recommended the burden of proving the elements of
the proposed defence should not be on the defendant. It should be framed as a matter
to be negatived by the prosecution. This recommendation could be seen as necessary
in the interests of clarity for the media to know in advance whether they might be
prosecuted rather than relying on prosecutorial discretion. However, there is a strong
argument this recommendation be tightened up especially where it relates to
publication of prior convictions. While there is a public interest in notifying the
public that a person is dangerous and at large there is no justification in mentioning
the accused's criminal history, especially when no charges have been laid. This
danger was recognised by the Victorian Bar Council in its submissions to the
NSWLRC Discussion Paper 43 where it warned of the defence being used to conduct
trial by media of a person being pursued by the authorities. 76 This danger to the
public scenario is one of the few exceptions to the thesiss argument that suspects be
publicly identified before being charged.
2.1.3 Open Justice
74 New South Wales Law Reform Commission, Contempt by Publication (Report 100, 2003)Recommendation 21.75
Ibid.76 Victorian Bar Council, submission to New South Wales Law Reform Commission, Contempt byPublication, (Discussion Paper 43, 200) at para. 24.
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The right to freedom of speech embraces the public right to criticise and scrutinise
court proceedings. It has been argued that the principle of open justice is just as
fundamental to a democratic society as freedom of speech. 77 Nevertheless there is no
common law right to open justice. As Patrick Keyzer has pointed out, there is a
common law right to justice, and there is a common law principle that the pursuit of
justice is ordinarily done in open court. 78 But the principle of open justice was
always qualified. 79 Probably the legal aphorism most well known by non-lawyers is
that of Lord Hewart from Rex v Sussex Justice; Ex parte McCarthy : 'it is not merely
of some importance but is of fundamental importance, that justice should not only be
done, but should manifestly and undoubtedly be seen to be done'. 80 Certainly it is an
accepted doctrine within the Australian justice system with the High Court expressly
applying the aphorism a number of times 81 since the landmark case of Scott v Scott 82
nearly 100 years ago. The case followed a divorce on the grounds of impotence of
the husband. The case had been heard in camera. It was uncontested and a decree
was pronounced. The petitioner then sent copies of the proceedings to the husband's
father and sister and to a third person. For this act, she was held to be in contempt of
the order which directed the proceedings to be held in camera. Earl Loreburn made it
clear that the trial judge's discretion to hear matters in private was controlled by
limitations when he said that 'the inveterate rule is that justice shall be administered
in open court and only where the subject-matter of the action would be destroyed by
77 Walker, C, 'Fundamental Rights, Fair Trials and the New Audio-Visual Sector' (1996) 59 Modern Law Review 517 at 517: "Because courts are a State responsibility, there is a legitimate demand fordemocratic accountability and discussion".78 Keyzer, P.,' Media Access to Transcripts and Pleadings and Open Justice: A Case Study' (2002)Vol. 2 No.3 The Drawing Board: An Australian Review of Public Affairs p.210.79 Daubney v Cooper [1829] 1 B & C 237 at 240; Scott v Scott [1913] AC 417 at 478; John Fairfax &Sons v Police Tribunal (1986) 5 NSWLR 465 and Cunningham v The Scotsman Publications Ltd [1987] SLT 698 at 705-706.80 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259.81 See eg Stollery v Greyhound Racing Control Board (1973) 128 CLR 509 at 518-519; Re JRL; ExParte CJL (1986) 161 CLR 342 at 351-352; Webb v Hay v R (1994) 181 CLR 41 at 47.
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the hearing in open court or where there was a well settled exception to the general
rule, might the doors be closed'. 83
In Russell v Russell 84 the Australian High Court held that a provision in the Family
Law Act 1975 (Cth) providing that state courts exercising federal jurisdiction under
the Act should conduct family law proceedings in closed court, was invalid. In the
more recent case of Raybos Australia Pty Ltd v Jones 85 an application for a
suppression order was denied on the principle of open justice. Therefore it may be
generally supposed that the conflict between the open justice principle and the sub
judice principle is generally resolved in favour of open justice. Certainly journalists
believe they have a duty to tell their readers about matters of public interest and that
their readers have an interest in receiving this information. But, as noted earlier, the
public interest in protecting fair trials can conflict with the public interest in freedom
of speech. The matter of a suspected person being named before being charged is not
necessarily covered by the open justice principle since, by definition, the matter has
yet to reach the court. But at that point it can be argued that the presumption of
innocence interests of the person charged are paramount and their name should not
be published. Also, publishing the name of a person charged with a crime before they
appear in court pre-empts their right to apply to the court for a suppression order.
However, as noted above, to publish a persons name in these circumstances is not in
contempt of court. Nor does it appear to breach any code of practice.
82 [1913] AC 417.83
ibid 445.84 (1976) 134 CLR 495.85 (1985) 2 NSWLR 47.
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In years gone by, the convention by the media was that particulars of a person
arrested for, or charged with a crime, were not published before the offender
appeared in court. This was partly because of the police policy of not releasing the
persons name until this time and partly a matter of prudential practice in avoiding
exposure to a defamation suit should the charges be dropped before a court
appearance. In criminal proceedings it has long been recognised that non-publication
orders could be made in order to maintain the purity of the administration of justice.
For example in the 19 th century case of R v Clement 86 it was held that a Court of
General Gaol Delivery had the power to make an order prohibiting the publication of
the proceedings pending a trial likely to continue for several successive days and to
punish the disobedience of such order by a fine. In that case a number of defendants
were jointly charged with high treason. Applications were successfully made for
separate trials of each of the accused. A close reading of R v Clement suggests that a
court's power was not just limited to preventing the contamination of witnesses but
could be used whenever it was necessary to do so to ensure that the accused had a
fair trial. In Scott v Scott that decision was not overruled. Indeed Lord Atkinson
referred to it as a 'weighty authority'. 87
Subsequent authority in Queensland in J v L & A Services Pty Ltd (No 2) 88 has
recognised a limited power of exclusion at common law including limited and
temporary restrictions on publicity during the course of jury proceedings in order that
jurors may not become contaminated. These cases therefore can be said to recognise
that courts have an overriding duty to ensure that accused persons have fair trials and
that they do have the power at common law to suppress names or evidence where
86 [1821] 4 B & Ald 218; 106 ER 918.87 [1913] AC 417 at 453-454.
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applicable. It also gives important judicial support to my thesis that the names of
suspects be suppressed until they appear in court.
2.1.4 Statutory exceptions to the principle of open justice
While there is common law authority for the suppression of identifying details in an
otherwise open court there are also statutory exceptions to the principle of open
justice. This indicates legislators, and therefore the community, recognise there are
occasions where the administration of justice takes precedence over the principle of
open justice. For that reason it is relevant to examine those statutory exceptions and
the reason for their application. In most Australian jurisdictions courts are invested
with the power, exercisable in specified circumstances, to prohibit or restrict the
publication of reports of proceedings. 89 These powers are not uniform as they vary in
terminology and in the material which they aim to prevent coming before the public.
They supplement rather than replace, the common law exceptions mentioned above
and because they represent a departure from the principle of open justice and restrict
freedom of speech, these statutes are interpreted narrowly. 90
However, although construed strictly, the statutory exceptions are usually wider in
scope than their common law counterparts and therefore intrude more widely upon
the principle of open justice. They usually either require a court to be closed to the
public or forbid the publication of certain information about a case, or they vest the
court with a discretion to make such orders, in which case the circumstances in
88 [1995] 2 Qd R 10 at 45.89 Federal Court of Australia Act 1986 (Cth), s 17 (4); Evidence Act 1971 (ACT), ss 82,83, 84;Crimes Act 1900 (NSW), s 578 (4) ; Evidence Act 1939 (NT), ss 57,59; Justices Act 1886 (Qld), s71; Evidence Act 1929 (SA), s 68; Justices Act 1959 (Tas), s37; Magistrate's Court 1989 (Vic.), s 126;County Court Act 1958 (Vic), s 80; Supreme Court Act 1986 (Vic), s 18; Evidence Act 1906 (WA), ss11, 11A.
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which such orders can be made are outlined in the legislation. Finally, it is unclear
whether statutory suppression orders bind all members of the public whether or not
they are present at the proceedings when the order is made. This situation has led to
considerable media disquiet. 91 A media organisation however, may seek to be heard
when an application is made for a suppression order or to appeal against the making
of a suppression order. There are numerous decisions recognising the standing of the
media to challenge an order after it has been made, 92 although it is less clear whether
this means they have an absolute right to be heard in the absence of legislation such
as that which operates in South Australia which does give the media standing to
make submissions when an application is made for a suppression order. 93
Nevertheless, the situation in most Australian courts in recent years has generally
been to allow the media to be heard when principles of open justice are in issue. 94 In
New South Wales the issuing of non-publication orders appears to favour the
principle of open justice over all else. The principal authority on this subject in that
state is John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales 95 where
McHugh JA said that the only occasion the court could depart from the fundamental
rule that justice must take place in an open court was when its observance would
frustrate the administration of justice. Furthermore, he said, 'in order of a court
prohibiting the publication of evidence is only valid if it is really necessary to secure
90 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55; Herald & Weekly Times Ltd v Magistrates' Court of Victoria (1999) 2 VR 672; R v Pomeroy [2002] VSC 178.91 Steven Scott, 'Hit or miss system for notifying suppression orders' (2005), Gazette of Law &
Journalism, http://www.lawpress.com.au/genews/ge162_supression_ orders_210105.html ( 21January 2005)92 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; The Herald& Weekly Times Ltd v Braun [1994] 1 VR 705; Nine Network Australia Pty Ltd v McGregor & Ors(2004) NTSC 27.93 Evidence Act 1929 (SA) s 69a (5) and (9).94 L v ABC & Ors (2004) NTSC 5; John Fairfax Publications Pty Ltd & Anor v District Court of NSW& Ors (2004) NSW CA 324; Channel Seven Adelaide Pty Ltd v Draper (2004) SASC 351.
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the proper administration of justice in proceedings before it'. 96 The test of 'necessity'
was most recently followed in John Fairfax Publications Pty Ltd & Anor v District
Court of NSW & Ors 97 where Spigelman CJ noted that the test must be applied with
'strictness' and only where 'the objective of ensuring the fairness of a subsequent trial
cannot be achieved in any other way'.
The view of experienced trial judges is that juries approach their task in accordance
with their oath, listen to the directions given to them to determine guilt only on the
evidence and implement them. 98 A similar situation exists in Victoria. 99 In
Queensland, suppression orders in criminal matters, other than situations where
children are involved, are virtually unheard of. However, in the Northern Territory
their legislation more closely resembles South Australia. Recently, the Full bench of
the Supreme Court in Nine Network Australia Pty Ltd v McGregor 100 approved the
test stated by Martin J in Advertiser Newspapers Ltd v Bunting & Ors 101 that 'once
the court is satisfied that there is a realistic possibility of creating the relevant risk
(emphasis mine) of prejudice to the administration of justice a court should not
hesitate to use the power of suppression'. This decision was followed most recently
in L v Paul Tudor-Stack 102 which concerned an unsuccessful challenge to a
suppression order made in the case of a prominent politician charged with child
pornography and sexual abuse. In his judgment Mildren J said the test of 'necessity'
was not the test to be applied in considering whether or not to make a suppression
95 (1986) 5 NSWLR 465.96 Ibid 476-477.97 John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) NSWCA 324 at
para. 5198 Ibid paras 102-105.99 Supreme Court Act 1986 s 19(b); see also Director of Public Prosecutions v Carl Williams & Ors
(2004) VSC 209 per Cummins J.100 (2004) NTSC 27 at para 51.101 (2000) SASC 458 at para 19.
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order under the Commonwealth Evidence Act. 103 The facts were that the politician
had appeared in the Magistrate's Court where he had been charged with possession of
child pornography. Orders were made in the Magistrate's Court to suppress his name
because at the time of the order it was anticipated the accused would also be charged
some time later with a number of sexual offences against children dating back
several years and the publication of his name would prejudice any subsequent trial.
The accused was subsequently charged with the sexual offences and a suppression
order was made. The complainant then made application before the Supreme Court
to have the suppression order relating to the child pornography charges lifted in the
interests of open justice. In rejecting the application, Mildren J said he had to
consider the 'relevant risk' (to the administration of justice) in relation to the period
of time likely to elapse between then and the date of trial as well as the fact that the
accused was well known in the community and was accused of a crime that attracted
considerable repugnance. 104
In those circumstances his Honour was satisfied that there was a realistic possibility
of prejudice to the accused's ability to receive a fair trial. This decision would seem
to accord with commonsense in that none of the usual remedies, that is, giving
directions to the jury to ignore everything but the evidence or perhaps delaying the
start of the trial would realistically overcome the prejudice to the accused,
particularly in a relatively small community like Darwin.
Of course, suppression orders can only be applied for once an accused appears in
court. While the courts have in some cases granted suppression of name this is not
102 L v Paul Tudor-Stack (2005) NTSC 19103 Evidence Act (Clth) s 57.
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the case when an accused is merely under suspicion. Therefore, by naming an
accused before they appear in court and before the sub judice takes effect the media
destroys an accused's right to apply for a suppression order because there would be
little use in applying for suppression once the person's name has already been
published. It can hardly be a desirable situation whereby the media has the power to
reduce a person's legal rights for no good reason.
2.1.5 Other non-publication provisions
There are also numerous other statutory provisions which recognise that justice
requires that the general rule of openness be modified in particular cases. For
example, the public reporting of proceedings in the Children's Court is prohibited
under the Queensland Child Protection Act 1999 as it is not open to the public,
unless approved by the court. The Queensland Juvenile Justice Act 1992 prohibits
the publication of an identifying matter in relation to a juvenile's criminal
proceeding. 105 And under the Queensland Justices Act 1886, justices can, in the
interests of public morality, require some or all persons to be excluded. 106 Therefore,
the idea of open justice is not absolute.
It is also pertinent to note that contempt restrictions apply on identification once an
accused appears in court. Indeed, police often go to great lengths (i.e. covering up an
accused's face by various means) while the accused walks to and from court but there
are no restrictions on the media from identifying suspects before they have been
formally charged. However, from time to time cases arise where a person charged or
suspected of an offence have allowed his or her identity to be published before they
104 L v Paul Tudor-Stack (2005) 19 at para. 21.105 s 62.
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appeared in court, usually through comments made to the media. A recent case in
point being Scott Volkers who was photographed arriving at the police station to be
formally charged, and who later conducted an impromptu media conference outside
his home. 107 Therefore, because there is no formal recognition of what is normal
practice it is my argument it should be clarified in legislation along the lines of the
NZLRC recommendation that publication of identifying details of a person charged
with an offence before they appear in court should be prohibited unless the person
consents. On this approach, the principle that the courts administer justice openly and
in public is not viewed as absolute. For even Bentham recognized that openness was
not absolute. 108
The better approach is to acknowledge that the open court principle may conflict
with other values, and seek to resolve the tension by contextual balancing because in
the final analysis, the open court principle is not an end in itself but a means to
promote the rule of law and the administration of justice. Openness that defeats
justice by prejudicing the accuseds right to a fair trial operates to corrupt rather than
promote the rule of law. A lesson can be learned from the American experience
where open justice has come to mean the media has unfettered power to comment on
all aspects of court proceedings. According to Professor David Anderson of the
University of Texas Law School, American courts long ago foreswore the use of the
contempt power to control media coverage in court proceedings. 109
106 s 71.107 Paula Doneman and Wayne Smith,Top swim coach on charges, The Courier-Mail, 27 March2002, 1.108
Bentham, J., Rationale of Judicial Evidence Specially Applied to English Practice, vol 1 (1827)541-542.109 Prof. David Anderson, 'Lessons from an Impeachment', (1999) 1 UTS Law Review 63.
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In Nebraska Press Association v Stuart 110 it was held that a judge may restrain
publication only if he or she can show that there is no other means of assuring a fair
trial, that the restraint will be effective to prevent prejudice and that the order
prohibits no more than necessary. Since then few judges have attempted to impose
restrictions on publication and even fewer have been upheld. 111 According to
Anderson this has led to the media being given free rein to interview parties,
witnesses, lawyers, judges and jurors and to disclose inadmissible evidence. 112
Anderson is of no doubt that much of the information that appears in the media is
there for the very purpose of influencing the outcome. He writes