Packer v Peacock [1912] HCA 8; (1912) 13 CLR 577 (13 March 1912)

The jurisdiction of the Supreme Court invoked in these cases was the jurisdiction which every superior Court possesses to protect itself from any action tending to impair its capacity to administer impartial justice. Such action is called contempt of Court, and it must be action affecting the Court itself. Punishment for such contempt, however, is not inflicted in order to vindicate the affronted dignity of the members of the Court, whether Judges or jurymen, but in the interests of the public in general, and in particular of suitors, whose right to obtain a hearing of their suit free from prejudice or bias might otherwise be imperilled. The reasons for the existence and exercise of such a jurisdiction cannot, if one may respectfully say so, be better stated than in the words of Lord Ellenborough in R. v. Fisher[1]:—"If anything is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced. Is it possible they should do so, after having read for weeks and months before ex parte statements of the evidence against the accused, which the latter had no opportunity to disprove or to controvert? By their own public declarations we know that the minds of jurymen are often pre-occupied by such statements, and that they proceed with terror to the discharge of their duty, from the apprehension that an antecedent bias may influence their verdict. These publications tend alike to the conviction of the innocent, and the acquittal of the guilty."

The action complained of in each of these appeals is the publication in newspapers of matter relating to a charge of murdering one Mary Davies, which was alleged to be likely to prejudice the minds of the readers against the respondent and so endanger his right to a fair trial. The matter complained of was, in each instance, published after the respondent's arrest and before the examination of witnesses before justices had been begun.

The first objection taken by the appellants is that the jurisdiction of the Supreme Court does not arise until the case is actually pending in that Court, which cannot, they say, be earlier than the committal of the accused for trial. This contention is in accordance with what was, we think, the general opinion of lawyers until the decision in R. v. Parke[2], and it was so held by the Supreme Court of Victoria in In re Syme, Ex parte Worthington[3]. In R. v. Parke[4] a Divisional Court of the King's Bench Division, constituted by Lord Alverstone C.J. and Wills and Channell JJ., held that the High Court had jurisdiction to commit a man for contempt in publishing matter relating to a charge of forgery which was in course of hearing before justices; but the decision was mainly based upon the ground that forgery was an offence triable only at the Assizes which were a branch of the High Court, so that the case was one which must eventually come before it. Wills J., who delivered the judgment of the Court, after pointing out that the jurisdiction is confined to contempt of the Court exercising it, and stating the nature of the conduct which in such cases is described as contempt of Court, said[5]:—"It is difficult to conceive an apter description of such conduct than is conveyed by the expression contempt of Court. If it be once grasped that such is the nature of the offence, what possible difference can it make whether the particular Court which is thus sought to be deprived of its independence, and its power of effecting the great end for which it is created, be at that moment in session or even actually constituted or not? It is perfectly certain that by law it will and must be constituted, and that when constituted it and it alone can take cognizance of the particular offence which is the subject of the preliminary inquiry. The wrong can hardly be less because the purpose or tendency of the act complained of is that the Assize Court never shall have undisturbed power to fulfil its functions satisfactorily. The High Court exists always. To provide beforehand that one of its branches which, although it does not at the moment exist, yet must, both according to immemorial custom, and now also by Statutes and rules having the same effect, come into existence, shall be hampered and hindered in the effectual discharge of its duties as soon as it is constituted, if called upon to try a particular case which it is at all events proposed to bring into that Court, is surely an offence against the High Court itself."

This reasoning is, of course, exactly applicable to the present case, in which the charge was of murder, which in Victoria is only triable before the Supreme Court.

In R. v. Davies[6], another Divisional Court, constituted by Lord Alverstone C.J., and Wills and Darling JJ., adhered to the decision in R. v. Parke[7], but put the jurisdiction of the Court on a wider basis. Wills J. who again delivered the judgment of the Court, said[8]:—"The truth is that the constant use of the term contempt of Court, owing to the fact that in the vast majority of cases the particular offence in question was an actual and direct setting at defiance of the orders of the Superior Court appealed to, in which cases the phrase contempt of Court has been strictly and in the narrowest sense its apt description, and its indiscriminate application to all the Superior Courts, has tended to obscure both the foundation and object of the jurisdiction, and to throw into the shade the essential difference between the jurisdiction exercised by the Court of King's Bench and that of the other Courts, which possessed none of the relations with the inferior Courts which have always appertained to the King's Bench. The preservation of the purity of the stream of justice in the case of the other Courts could affect no other Court than that which was exercising the jurisdiction. They were not the custodes morum (to use Hawkins' phrase) in any sense analogous to that which the phrase bears when applied to the King's Bench, whose peculiar function it was to exercise superintendence over the inferior Courts and confine them to their proper duties. This, however, as it seems to us, was only one exercise of the duty of seeing that they did impartial justice, and if and when the attainment of that end required that the misdeeds of others should be corrected as well as the misfeasances of the inferior Courts themselves, it seems to us that it is no departure from principle, but only its legitimate application to a new state of things, if others whose conduct tends to prevent the due performance of their duties by those Courts have to be corrected as well as the Courts themselves."

And, after referring again to the general supervision exercised by the Court of King's Bench over inferior Courts, he said[9]:—"It is because we think that we are creating no new jurisdiction, but acting strictly in conformity with the cardinal principles upon which the jurisdiction to commit for conduct tending to improperly interfere with the administration of justice rests, that we have come to the conclusion at which we have arrived. To confine the application of such principles to facts identical with or closely resembling those of preceding cases, and to hold that, because in times long gone by the chief, if not the only danger to be guarded against was the illegal exercise of arbitrary power by inferior Courts and their officers, therefore the power of this Court extends no further, and that the King's Bench cannot afford them protection as well as administer correction, would, we think, be to mistake the application of a principle for the principle itself. The mischief to be stopped is in the case of the inferior Courts identical with that which exists when the due administration of justice in the superior Courts is improperly interfered with. The reason why the Court of King's Bench did not concern itself with contempts of the other superior Courts was that they possessed ample means and occasions for protecting themselves. Inferior Courts have not such powers, although some of them, quarter sessions for example, try many more cases than are tried at assizes, and have a very extended and important jurisdiction."

The Court held, in effect, that the Court of King's Bench had power to punish contempts of inferior Courts, at any rate in criminal cases. In R. v. Parke[10], on the other hand, they had assumed that the contempt must be of the Court itself. It will be noticed that the Court expressly disclaimed the creating of any new jurisdiction. Whatever jurisdiction the High Court in England now has the old Court of King's Bench must have had at common law. These cases have since been followed in England (R. v. Clarke)[11], in New South Wales, in New Zealand, and in a case in the High Court of Madras: Re Vinkat Row[12] (for a copy of which we are indebted to our brother Isaacs), and may be taken to be generally accepted by the profession as declaring the law. The decisions were not, indeed, appealable, and could only be reviewed by a Divisional Court specially constituted ad hoc, as is sometimes done.

Yet, with all respect, the reasoning, especially in the case of R. v. Davies[13], is not easy to follow. The connection between the general jurisdiction of the Court of King's Bench to correct inferior Courts and a general jurisdiction to protect them is not obvious, and had never before been asserted. We should, however, hesitate long before declining to follow these authorities. But we think that there is another aspect in which the asserted power of the Court of King's Bench to exercise this jurisdiction may be considered.

The jurisdiction, as already pointed out, is founded upon general principles of necessity, which has little or nothing to do with technical considerations. The procedure prescribed by law for bringing an accused person to trial is, in principle, a continuous process, beginning with arrest (or in some cases a summons which is equivalent to it) and ending with the trial. All the intermediate proceedings are, in substance, stages in this single process. It is a fact that some of the documents used are entitled in the Superior Court, while others bear the words e.g. "Middlesex to wit."

If there is only one Court in which the trial can take place the preliminary proceedings are necessarily taken with reference to that Court, and the case is, in substance though not in form, pending in that Court. In England, before the establishment of Quarter Sessions, the procedure was simple. The accused was arrested and remained in custody until delivered by the Justices of Gaol delivery. The Act 1 Richd. III. c. 3 authorized a justice to grant bail in cases of felony. Previously such bail could only have been granted by the Court of King's Bench. (See per Best J. in Cox v. Coleridge)[14]. At this period all persons in custody on a charge of committing an indictable offence were in substance parties to a cause already instituted, which was justiciable only in the King's Bench, and were entitled to invoke the protection of that Court to ensure a fair trial.

The circumstance that concurrent jurisdiction in some cases was afterwards conferred upon Quarter Sessions or any other Court cannot affect this position. The cause is still potentially and substantially, if not formally, pending in the King's Bench. If a specified inferior Court had exclusive jurisdiction, this argument would not, of course, apply.

The Supreme Court of Victoria has, and always has had, the same jurisdiction as the Court of King's Bench had in England at common law.

These reasons (apart from any others) are, in our judgment, sufficient to show that the Supreme Court had jurisdiction to make the orders appealed from.

One question is common to all these appeals, namely, "to what extent is a public journal warranted by law in publishing matter relating to a pending criminal charge?" We were invited to formulate the limits within which such publication is lawful. But this, we think, is neither desirable nor practicable. In this, as in many other cases, it may be difficult to lay down a precise line of demarcation, but not difficult to say on which side of the line a particular case falls. One rule, however, may be stated with confidence. A publication which tends to prejudice or bias the public mind, either on one side or the other, and so to endanger a fair trial, is unlawful and a contempt of Court. The whole matter published must be considered, and its tendency must be regarded as a whole.

It was at one time thought that the publication of a report of preliminary proceedings before justices was necessarily unlawful, but this is no longer held to be the law: See Lewis v. Levy[15]; Usill v. Hales[16].

Those were cases of libel, and the defence set up was what is still in England and Victoria called privilege. But the substance of the decisions was that the action complained of was not unlawful and therefore not actionable. It cannot be that an act is at the same time both absolutely forbidden by law and possibly lawful. The effect of these cases is that a fair and colourless report of proceedings in a public Court of Justice without comment is not absolutely forbidden by law.

The matter complained of in the present cases does not consist of such reports, but of statements of alleged facts expected to be proved upon the charge, with comment upon them. It was suggested rather than pressed that the permission allowed by law to publish anything relating to a pending charge of crime does not extend beyond a publication of reports of proceedings before justices. We cannot accept this view.

Publishers of newspapers have not, of course, any greater rights with respect to publication than those enjoyed by other persons. It has, nevertheless, become part of the ordinary course of life in civilized communities to publish through the medium of the press information as to matters of interest to the public, using that term to mean matters as to which the public entertain a natural and legitimate curiosity. It would be unfortunate for civilization if satisfaction of such a curiosity by this means were prohibited. The motives for the curiosity may be infinitely various. The matter may be one of general public importance, or may be interesting to only a small class of readers.

In our opinion the public are entitled to entertain a legitimate curiosity as to such matters as the violent or sudden death or disappearance of a citizen, the breaking into a house, the theft of property, or any other crime, and it is, in our opinion, lawful for any person to publish information as to the bare facts relating to such a matter. By "bare facts" we mean (but not as an exclusive definition) extrinsic ascertained facts to which any eyewitness could bear testimony, such as the finding of a body and its condition, the place in which it is found, the persons by whom it was found, the arrest of a person accused, and so on. But as to alleged facts depending upon the testimony of some particular person which may or may not be true, and may or may not be admissible in a Court of Justice, other considerations arise. The lawfulness of the publication in such cases is conditional, and depends, for present purposes, upon whether the publication is likely to interfere with a fair trial of the charge against the accused person. Comment adverse to him upon the facts is certainly not admissible.

We are not disposed, nor is it necessary in the present case to lay down any more definite rule. We proceed to deal with the facts of the particular cases before us.

As to this case, without referring to the matter complained of in detail, which largely consists of comment, we adopt the language of the learned Chief Justice of the Supreme Court: In re Packer, Ex parte Peacock[17]: "I suppose no reasonable person could read that set of articles and come to any other conclusion than that the writer intended to express the view strongly felt that this was a murder by Dr. Peacock, with all the incidents to which I have referred. The whole was contrived in a way which carries the reader with it rhetorically, and it is well composed together, so that every feature is rhetorically commended to those who read. There cannot be any doubt that the great body of people in the community who read this newspaper are now of opinion that this woman has been killed and the body has been disposed of in circumstances amounting to murder, and that Dr. Peacock was the person who did it."

If the same matter were set out in a Statement of Claim or indictment for libel with an innuendo, the innuendo would be "meaning thereby that Peacock had murdered Mary Davies." And the innuendo would be abundantly justified.

Such matter widely circulated in the community cannot but tend to endanger the fair trial of the accused.

The matter complained of in this case is of a different character. Some care appears to have been used, with a desire not to transgress the limits of legitimate journalistic functions. The most objectionable matter is contained in an article headed "Woman's Disappearance" in the issue of 2nd September, which gives a summary of the facts as supposed to be known up to that time, including a summary of the information given to the police by one Poke. This contained statements as to interviews with the deceased woman, in one of which she is alleged to have said that Peacock had done the illegal act on which the charge of murder was based, and also as to interviews with Peacock who was alleged to have told Poke that she was dead and that he had disposed of the body.

The point in the case to which the public curiosity was mainly directed was as to what had become of the body of Mary Davies, if she was dead. Her body had not, nor had any trace of it, been found. The same article contained the following paragraph:—

It is suggested that the general effect that would be produced in the mind of the average reader by such an article would be a feeling of curiosity, which might be expressed as "I wonder whether Mary Davies is dead." On the other hand it is contended that the effect would be to create a clear impression that she was dead, and that Peacock had caused her death, although there might be some technical difficulties in proof if the body were not found, so that the only question to which the answer was uncertain would be "What did he do with the body?"

On the whole we have come to the conclusion that the latter is the true effect of the matter complained of, and that the appellant was consequently guilty of contempt of Court.

The first article complained of in this case contained what purported to be a report of an interview with Poke, in which he detailed in the form of a narrative a series of alleged facts, including conversations with Mary Davies and with Peacock, making a connected story showing, if believed, a clear case of murder against Peacock. This is as if before the trial of an action—say for fraud—a newspaper were to publish a copy of the proofs of the plaintiff's witnesses. Such a publication is obviously unjustifiable on any possible view of the liberty of the press. We need not refer to other parts of the matter complained of.

In this case, also, therefore, the appellants were rightly adjudged guilty of contempt.

The only question remaining is as to the penalties. The gravity of the offences committed by the different appellants, in our opinion, differs in degree. The offence of the Age was much more serious than the others, but the penalty imposed on the publisher was only £200, which was also the penalty imposed on the publishers of the Argus and Herald respectively, while the editor of the Herald was fined £100, with a nominal sentence of imprisonment, which was, however, not intended to be and was not enforced.

The appellants in the two latter cases contend that the penalty was too severe. If that imposed on the publisher of the Age is to be taken as the standard we are disposed to agree, but we are reminded, nevertheless, of the parable of the labourers in the vineyard.

We think, therefore, that all the appeals must be dismissed. But in order to mark the different degree of culpability in the several cases, and having regard, also, to the fact that they are, in some sense, of first impression, we think that the penalties inflicted on the publishers of the Argus and the Herald may be reduced, in the case of the Argus to £50, and in the case of the Herald to £100.

Solicitors, for the appellants, Gillott & Moir; Blake & Riggall; Fink, Best & Hall.

[1] 2 Camp. 563, at p. 570.

[2] (1903) 2 K.B., 432.

[3] 28 V.L.R., 552; 24 A.L.T., 123.

[4] (1903) 2 K.B., 432.

[5] (1903) 2 K.B., 432, at p. 437.

[6] (1906) 1 K.B., 32.

[7] (1903) 2 K.B., 432.

[8] (1906) 1 K.B., 32, at p. 42.

[9] (1906) 1 K.B., 32, at p. 47.

[10] (1903) 2 K.B., 432.

[11] 27 T.L.R., 32.

[12] 10 (Indian) Citator, 26th March, 1911.

[13] (1906) 1 K.B., 32.

[14] [1822] EngR 19; 1 B. & C., 37, at p. 52.

[15] E.B. & E., 537.

[16] 3 C.P.D., 319, at p. 324.

[17] (1911) V.L.R., 401, at p. 410; 33 A.L.T., 69.

High Court of Australia

Packer v Peacock [1912] HCA 8; (1912) 13 CLR 577 (13 March 1912)

HIGH COURT OF AUSTRALIA