James v Robinson [1963] HCA 32; (1963) 109 CLR 593 (30 August 1963)

HIGH COURT OF AUSTRALIA

JAMES v. ROBINSON [1963] HCA 32; (1963) 109 CLR 593

Contempt of Court

High Court of Australia
Kitto(1), Taylor(1), Menzies(1), Windeyer(2) and Owen(1) JJ.

CATCHWORDS

Contempt of Court - Contempt committed out of court - Summary jurisdiction of Supreme Court - Publication of matter likely to affect criminal trial - Proceedings imminent but not commenced at time of publication.

HEARING

Perth, 1963, June 19, 20;
Sydney, 1963, August 30. 30:8:1963
APPEAL from the Supreme Court of Western Australia.

DECISION

August 8.
The following written judgments were delivered:-
KITTO, TAYLOR, MENZIES AND OWEN JJ. This is an appeal from an order of the court upon the appellants Western Press Limited (hereinafter called "the company") and Murray Willoughby James and directed that those appellants and the appellant Lionel John Toop pay the costs of the proceedings against them in which the penalties were imposed. (at p599)

2. The company was at the material time the publisher, and the appellant Toop the printer, of the "Sunday Times", a weekly newspaper which was published in Perth and which had a circulation throughout Western Australia. The appellant James was the editor of the paper. It was proved that in two issues thereof on Sunday 10th February 1963 there was published an account of two killings by a "wild gunman" in Perth. The articles clearly identified Robinson as the gunman and it was related that after killing two named persons in public places and threatening others he had secreted himself in a pine plantation some twenty square miles in area not far from Perth. The articles purported to report the accounts of various eye witnesses and it was said that an intensive "manhunt" was in progress at the time of the publication of the newspapers. Each account commenced with a banner headline, the first being "TWO MURDERED BY GUNMAN AT BELMONT" and the second, in even larger type, "2 MURDERED". Each account featured some photographs and in the latter issue was a photograph of the respondent as the "hunted" man. It is, we think, unnecessary to refer to the reports in detail for subject to one question of law which was debated they were clearly contempts as was frankly admitted. (at p600)

3. Very little information was contained in the affidavit in support of the application which was made to the Supreme Court. It does not even appear except by implication that the respondent was ever apprehended, but it is clear enough that it was not until Tuesday 12th February 1963 that complaints were sworn alleging two murders by Robinson and that on the following day he was charged and remanded in custody. It is not suggested, however, that he was apprehended before the publication in the ordinary course of the articles in question but, apparently, he was arrested without warrant at some time after publication and before the complaints were laid. It was common ground that at the time of the publication the respondent was "being hunted by large numbers of policemen with a view to his apprehension for complicity in the killings". (at p600)

4. In these circumstances two questions of law were raised by the appellants before the Supreme Court. In the first place it was contended that the Court had no jurisdiction to deal summarily with a contempt of the character alleged and, alternatively, that the publication of the reports in question did not amount to contempts since, in fact, no relevant proceedings were then pending before the Court. (at p600)

5. The first contention, which goes only to the question of procedure, may be disposed of with relative brevity. It asserts that even if the publications amounted to contempts the only available procedure was by way of information and indictment and it rested upon the not inconsiderable criticism to which the unpublished judgment of Wilmot J. (as he then was) in R. v. Almon (1765) Wilmot's Notes 243 [1765] EngR 25; (97 ER 94) has been subjected. In particular, criticism has been directed to the statement that: "the issuing of attachments by the supreme courts of justice in Westminster Hall for contempts out of court stands upon the same immemorial usage as supports the whole fabric of the common law; it is as much the lex terrae and within the exception of Magna Charta as the issuing of any other legal process whatever . . . It is as ancient as any other part of the common law; there is no priority or posteriority to be discovered about it and therefore (it) cannot be said to invade the common law but to act in an alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society. And though I do not mean to compare and contrast attachments with trials by jury, yet truth compels me to say that the mode of proceeding by attachment stands upon the very same foundation and basis as trials by jury do -- immemorial usage and practice; it is a constitutional remedy in particular cases and the judges in those cases are as much bound to give an activity to this part of the law as to any other part of it". A series of interesting and learned articles by Sir John Fox in the Law Quarterly Review (vols.24 and 25) are directed to the examination of these propositions and, as is asserted by counsel for the appellants upon the strength of the articles, it was mistakenly supposed in the eighteenth century that the authority of a superior court of record to proceed summarily in relation to contempts constituted by the publication of matter calculated to prejudice the fair trial of issues between parties to pending litigation was precisely of the same order as its authority to deal with persons for contempts in the face of the Court or for other direct contempts. The appellant says it is now time that the error should be corrected. But as the learned author of the articles pointed out R. v. Almon (1765) Wilmot's Notes 243 [1765] EngR 25; (97 ER 94) "has been referred to with approval in a line of decided cases extending to the present day" and these are set out in a footnote (vol. 24, p. 184). In the half century which has followed the publication of these articles the principle has, if possible, become more firmly established (see for instance Packer v. Peacock [1912] HCA 8; (1912) 13 CLR 577 ; Porter v. The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432 ; Consolidated Press Ltd. v. McRae [1955] HCA 11; (1955) 93 CLR 325 ; John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351 ; R. v. Clarke; Ex parte Crippen (1910) 103 LT 636 ; R. v. Daily Mirror; Ex parte Smith (1927) 1 KB 845 ; R. v. Davies; Ex parte Delbert-Evans (1945) 1 KB 435 and Reg. v. Duffy; Ex parte Nash (1960) 2 QB 188 ). It is clear, as Sir William Holdsworth has said, that the decision in R. v. Almon (1765) Wilmot's Notes 243 [1765] EngR 25; (97 ER 94) -- notwithstanding that he thought it was a decision for which there was little, if any, authority -- "was accepted as correct, and it forms the basis of the modern law on this subject". (A History of English Law, vol. III, p. 393). That being so it would, we think, be the sheerest futility to seek to ascertain whether the present law rests upon a sound historical basis or not for as Sir John Fox says in concluding his articles "The law as it stands is so firmly established that Parliament alone can effect an alteration if alteration be necessary". We entirely agree with this observation and find it unnecessary to say more concerning the appellants' first contention. (at p602)

6. The second contention is of more substance and goes to the question whether the reports appearing in the newspapers can, in the circumstances of the case, be regarded as constituting contempts of court. Interference with the due administration of justice is of the essence of all contempts of court but, where the contempt consists of interference with the administration of justice generally different considerations apply from those which apply in a case where what has been said or done has only a tendency to interfere with the fair trial of a particular case. Scandalizing the court is typical of the former species and we are disposed to think that Attorney-General v. Butterworth (1963) 1 QB 696 is an instance of this sort of contempt for, although to punish a witness for giving evidence in a case which has been decided would not interfere with the administration of justice in that case, such conduct would by discouraging witnesses tend to interfere with the due administration of justice in other cases. It is only with the narrower kind of contempt that we are concerned here. As was said by the Supreme Court of New South Wales in Attorney-General v. Mirror Newspapers Ltd. (1962) SR (NSW) 421; (1961) 79 WN 56 , no doubt having in mind the observations of Lord Hewart C.J. in R. v. Daily Mirror; Ex parte Smith (1927) 1 KB 845, at p 847 , "The phrase contempt of court as applied to the facts of this case is a little misleading. It does not refer to a contemptuous attitude to the court itself but to the mischief created by a publication tending to prejudice the position of an accused person or of the Crown in its role of prosecutor" (1962) SR (NSW), at p 423; (1961) 79 WN, at p 57 . And since the gravamen of the offence of contempt by means of such publications is prejudice to the fair trial of issues between "parties in causes" (to use Lord Hardwicke's expression in the St. James Evening Post Case [1742] EngR 142; (1742) 2 Atk 469 (26 ER 683) it has been said in innumerable cases that there is no contempt unless proceedings are pending. Thus in Skipworth's Case (1873) LR 9 QB 230 Blackburn J. described as a purpose more important than vindication of the dignity of the Court itself for which contempt proceedings become necessary, that "When a case is pending, whether it be civil or criminal, in a Court it ought to be tried in the ordinary course of justice, fairly and impartially" (1873) LR 9 QB, at p 232 . And the Privy Council in McLeod v. St. Aubyn (1899) AC 549, at p 561 divided contempts of court under three heads, contempt ex facie of the Court, comments on cases pending in the Courts, and scandalizing the Court itself. In the case of In re Crown Bank; In re O'Malley (1890) 44 ChD 649 , there is a precise decision by North J. that a publication prejudicial to proceedings for winding up a company could not be contempt of court if made before the presentation of the petition. In Reg. v. Payne and Cooper (1896) 1 QB 577 Lord Russell C.J. said: "Every libel on a person about to be tried is not necessarily a contempt of Court; but the applicant must show that something has been published which either is clearly intended, or at least is calculated, to prejudice a trial which is pending" (1896) 1 QB, at p 580 . Likewise, Isaacs J. in Porter v. The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432, at pp 443, 444 was of the opinion that an appeal against an order imposing a penalty for contempt of court should be allowed "on the ground that, there being no proceedings pending, the summary process of attachment for contempt of court is wholly inapplicable" (1926) 37 CLR, at p 443 . He added that "it would be an unprecedented and unwarranted stretch of curial authority, and an undue limitation of the right of free speech, to fine or imprison for a mere conjectural impediment to a non-existing proceeding" (1926) 37 CLR, at p 444 . In the same case Higgins J. took the view that it is of the essence of contempts of the character alleged in this case "that Court proceedings be pending when the comments are published" (1926) 37 CLR, at p 447 ; and he cited Reg. v. O'Dogherty (1848) 5 Cox CC 348 . See also Metzler v. Gounod (1874) 30 LT 264 . (at p603)

7. The Supreme Court, in making the order under appeal, founded itself in the main upon observations made in the case of R. v. Parke (1903) 2 KB 432 where a Court, constituted by Lord Alverstone C.J., Wills and Channell JJ., considered that a publication relating to a person who had been arrested and charged with forgery but who had not been committed for trial, constituted a contempt of the High Court of Justice. The objection had been taken that there were no proceedings pending before that Court. In the course of its reasons, delivered by Wills J., the Court said: "The reason why the publication of articles like those with which we have to deal is treated as a contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists -- namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the Court which has to try the case to impotence, so far as the effectual elimination of prejudice and prepossession is concerned. 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 the less because the purpose or the 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.
"Looking, therefore, to the principles upon which this jurisdiction rests, and to the mischief to prevent which it exists, we can have no doubt that it is properly invoked in the present case.
"Great stress has been laid by Mr. Danckwerts upon an expression which has been used in the judgments upon questions of this kind -- that the remedy exists when there is a cause pending in the Court. We think undue importance has been attached to it. It is true that in very nearly all the cases which have arisen there has been a cause actually begun, so that the expression, quite natural under the circumstances, accentuates the fact, not that the case has been begun, but that it is not at an end. That is the cardinal consideration. 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" (1903) 2 KB, at pp 436-438 . (at p604)

8. The question to which this passage was directed was whether the High Court had jurisdiction to punish summarily as for a contempt of itself, where the only proceedings pending at the time of the publication charged were proceedings in a court of petty sessions for committal to an assize court. The decision was that the Court had that jurisdiction. In Packer v. Peacock [1912] HCA 8; (1912) 13 CLR 577 this Court followed the reasoning in R. v. Parke (1903) 2 KB 432 in a case where the publication concerned a person who had been arrested and charged before justices but not yet committed for trial. In the course of its reasons the Court observed that (1912) 13 CLR, at p 582 -- "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 (1903) 2 KB 432 , and it was so held by the Supreme Court of Victoria in In re Syme; Ex parte Worthington (1902) 28 VLR 552 ". (at p605)

9. Then the Court proceeded to refer to the passage which we have already cited from the English case. These are two instances where a Court has treated publications of the character in question here as contempts of its authority although no proceedings were actually pending in that Court. But in each case charges had been formulated, the accused had been charged and was in custody, and the charges were such as might have to be tried in the Court. As to the observation of Wills J. that "in very nearly all the cases which have arisen there has been a cause actually begun" (1903) 2 KB, at p 438 , we know of no case where publications of the character here in question, made before the commencement of proceedings in any form, have been held to be contempts. What Lord Goddard C.J. obviously meant when in Reg. v. Odhams Press Ltd. (1957) 1 QB 73 he spoke of a person being punished for contempt "if the criminal law has been set in motion" (1957) 1 QB, at p 79 was that curial procedures, and not merely police activity, must have been commenced. And when Cotton L.J. in Hunt v. Clarke (1889) 58 LJQB 490 spoke of observations being a contempt if published "pending a cause or before a cause even has begun" (1889) 58 LJQB, at p 492 , he seems to have meant by the cause the hearing of the cause; for he insisted throughout on the necessity of prejudice to the parties in the case. The many cases, of which R. v. Clarke; Ex parte Crippen (1910) 103 LT 636 is a striking example, in which the Courts have been concerned to decide when it is that a cause is pending, are authorities for holding that there cannot be a contempt where no proceedings at all are pending at the moment of the publication complained of. (at p605)

10. In view of the decision in R. v. Davies (1906) 1 KB 32 to the effect that the King's Bench Division has power to punish by attachment contempts of inferior courts it seems unlikely that the precise question which arose and was decided in R. v. Parke (1903) 2 KB 432 will ever arise again in England; and the decision of this Court in John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351 probably precludes the question here. (at p606)

11. The proposition that proceedings are pending in criminal cases after a person has been arrested and charged is firmly established, and it has been extended to cases where the publication took place after the accused had been arrested in England on a Scottish warrant (presumably backed in England pursuant to the Indictable Offences Act, 1848) and before his return to Scotland (Stirling v. Associated Newspapers Ltd. (1960) Sc LT 5 ) and where the publication took place after the accused had been arrested abroad under the Fugitive Offenders Act, 1881 and extradition proceedings were pending (R. v. Clarke; Ex parte Crippen (1910) 103 LT 636 ); but we have been unable to find any further extension of the principle. Nevertheless it is contended that a publication calculated to prejudice future proceedings will constitute contempt provided the proceedings are imminent. The contention is based upon the penultimate sentence in the passage already quoted from R. v. Parke (1903) 2 KB, at p 438 . The question of its validity was left open by Fullagar J. in Consolidated Press Ltd. v. McRae (1955) 93 CLR, at pp 344, 345 and by the Court in John Fairfax & Sons Pty. Ltd. v. McRae (1955) 93 CLR, at pp 358, 359 , as it had been long before by the Supreme Court of New South Wales in Ex parte Senkovitch (1910) 10 SR (NSW) 738, at p 744 . We were referred to the observation of Lord Hewart in R. v. Daily Mirror; Ex parte Smith (1927) 1 KB, at p 851 that some day the question whether there may be contempt of court when proceedings are imminent but have not yet been launched may have to be decided. As his Lordship said, the question did not arise in that case, for there had been a charge and an arrest antecedently to the publication of which complaint was made; but the day, it is said, has now arrived. One cannot fail to be impressed by the observation that "it is possible very effectually to poison the fountain of justice before it begins to flow" (1903) 2 KB, at p 438 and by the considerations which follow it; but it was made by Wills J. obiter in R. v. Parke (1903) 2 KB 432 ; and it may be that in R. v. Davies (1906) 1 KB 32, at p 35 that learned Judge himself seemed to see a need to qualify it, for when in specific reference to the decision in R. v. Parke (1903) 2 KB 432 he spoke of the tendency to poison the stream of justice he added "in the Court", meaning the Court which ultimately tries the case after committal. No doubt in choosing the metaphor his Lordship had in mind the language of Lord Hardwicke's judgment in the St. James Evening Post Case [1742] EngR 142; (1742) 2 Atk 469, at p 471 [1742] EngR 142; (26 ER 683, at p 685) ; and Lord Hardwicke there made it clear that he was referring only to the stream of justice between parties "concerned in causes here". As Lord Erskine pointed out in Ex parte Jones (1806) 13 Ves 237 (33 ER 283) , Lord Hardwicke "considered persons concerned in the business of the Court as being under the protection of the Court; and not to be driven to other remedies against libels upon them in that respect" (1806) 13 Ves, at p 238 (33 ER, at p 284) . Here, we think, is to be seen the ultimate reason why the kind of contempt we are here considering cannot occur save where some proceedings have been commenced. If a publication is to constitute contempt at all it must be a contempt at the time it is made, and the person aggrieved must be aggrieved in his capacity of a party to proceedings; therefore he must be a party at that time. It would be an astonishing state of affairs if a person responsible for a publication were to be held guilty or not guilty of contempt according as proceedings should or should not be commenced thereafter. (at p607)

12. We do not think that the very general considerations based upon the notion of poisoning the stream of justice before it begins to flow provide any sound or adequate test for determining what is and what is not contempt of court. A publication antecedently to the commencement of proceedings may, as we have already said, constitute a libel or offence punishable under and in accordance with the general law, but it is not contempt of court. We think that in order to constitute contempt of court it must, for the reasons which we have indicated, be concerned with proceedings which are pending in a court in the sense in which that expression has been applied in the cases to which we have referred. Indeed, if the imminence of proceedings were to be regarded as sufficient foundation for applications for attachment for contempt in matters of this character -- which would, of course, introduce many difficulties and much uncertainty -- then there was no reason why the courts should have taken the trouble, as they have done in the many cases mentioned, to examine the significance of the laying of an information or the making of a charge and subsequent arrest. The present case is unusual, inasmuch as it seems that the alleged crimes were committed in public places with attendant publicity and the respondent was pursued by a large body of police officers with a view to his apprehension. Nevertheless, these circumstances provide no foundation for a departure from the rule that publications of the character in question here are not contempts punishable summarily in the Supreme Court unless at the time when the publications are made a Court is in some way or other seised of the subject-matter and the Supreme Court is thereby vested with a power to protect its authority, or the authority of the court concerned, to determine the relevant proceedings without obstruction or interference. That being so we are of the opinion that the appeal should be allowed. (at p608)

WINDEYER J. The appellants are the editor, the printer and the publisher and proprietor of the "Sunday Times", a weekly newspaper published in Perth and circulating there and elsewhere in Western Australia. The articles complained of appeared in two editions of the paper, the first published on the evening of Saturday 9th February 1963, the second on the next day, Sunday. The first bore on the front page the matter following, printed in bold-face type varying in size from a banner headline in letters over an inch in height to great primer,

"Two Murdered By
Gunman at Belmont
Escape in
taxi at
gunpoint
A policeman and a man were shot dead by a wild gunman in
Epsom Ave., Belmont, yesterday afternoon. Immediately after
the shooting the gunman escaped in a taxi, with the gun
levelled at the driver's head. He was wearing fawn trousers,
and had a large bag of shot-gun cartridges with him."

Then, after the names of the two victims:

"Man known
Police are looking for Brian William Robinson, 23, laborer,
of Epsom Ave., Belmont." (at p608)

2. So much for the headlines. The rest of the front page and part of another page supplied further details, with what purported to be accounts given by eye witnesses. It was said that the killer was believed to be in hiding, and that "in the Epsom Ave. area crowds of sightseers thronged round the homes, the cars and the bodies which were not moved until after 5 p.m.". With the narrative were two photographs. One was of a car with, it was stated, a dead body in it covered by a rug, the rug so arranged as to appear in the photograph. The other was of the wanted man's father, his face apparently hurt. He, it was stated, said that he had been beaten by his son before the shooting occurred. (at p609)

3. The next edition bore a headline: "2 Murdered". Then followed two photographs. One, the same as in the earlier edition, was of the car with a rug in it said to be covering a corpse. The other showed what, according to the accompanying legend, was the covered body of the dead constable, lying on the road. The letterpress then continued: "Killer still on the loose after gunpoint escape". Then came a repetition of the matter in the first edition - with additions, including the following: a photograph of the wanted man, Brian William Robinson; a statement that he had said "I'll get two more"; an account of the police search, which had become concentrated upon a pine plantation about twenty acres in extent; a statement by the taxi-driver to the press, including his opinion that the man "knew what he was doing"; a photograph of "crowds of searchers . . .". There was also a photograph of a policeman "armed with a rifle and a revolver in his trouser pocket . . . outside the Robinson home in case the wanted man returned": he stands so as to display, conveniently for press photography, both the rifle and the butt of a pistol, apparently not in a holster but loosely protruding from his pocket. In addition there was a description of the taxi-driver's wife, who "looked drawn and tired after her harrowing wait for her husband" and of the happiness of her three young sons, names and ages given, when they heard that their father was safe. (at p609)

4. A court is not concerned with the taste, good or bad, of this mixture of melodramatic and morbid material, sensationalism and sentimentality. Whether its publication would tend to affect the course of justice, not its literary merit, is the question. But reading it does not incline one to accept unhesitatingly the statement, in the editor's affidavit, that he believed that it was "in the interest of members of the public and of their safety" that the facts should be published and "presented in such a way as to warn the members of the public to take care for their own safety and thereby reduce the possibility of further shootings". He was apparently naive enough to suppose that this laudable purpose was aided by publishing sensational details and stating that sightseers were thronging to the scene of the shooting, where an armed policeman "stood guard", and by a photograph of a crowd of people near the locality of the search. I am no less sceptical about the argument that the publication of the articles was in the public interest because, so counsel urged, the public are entitled to expect such information, and that therefore the publication was, to use his words "within an area of privilege". The question was posed as one of competing public interests. I do not doubt that, using the words of Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242; 54 WN 98 cases can occur in which "as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. 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 the 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" (1937) 37 SR (NSW), at p 249; 54 WN, at p 100 : and see Ex parte Dawson; Re Australian Consolidated Press Ltd. (1961) SR (NSW) 573; (1958) 78 WN 221 . But this case is far removed from one of that sort. Here the protestation of good purposes brings to mind Coke's statement that "sometimes when the public good is pretended, a private benefit is intended": 10 Rep. 142 b. The assertion of a duty, or a privilege, or a service beyond the legitimate selling of news to those who wish to buy it, is, I think, sufficiently answered by quoting what Martin C.J., who had himself been at one time a newspaper editor, said in the Supreme Court of New South Wales in 1880: "So far as the public are concerned, the writers in, or the publishers or proprietors of, a newspaper have no duties whatever imposed upon them. They receive no appointment from the public, and they acknowledge no subordination to authority. The publication of a newspaper is a commercial speculation, just as much as the buying and selling of wool or tallow. The public are anxious to know certain facts that are daily and hourly occurring, and certain persons find it profitable to employ reporters and printers to satisfy this want. No question of duty whatever is involved. The journalist publishes what he thinks will be profitable to him, and the public pay him for his trouble. But he has no privilege": Re The Evening News (1880) 1 NSWLR 211, at p 240 . (at p610)

5. But the case against the appellants is not to be judged by the unconvincing character of what was said in extenuation after they were adjudged guilty. Would the articles tend to prejudice a fair trial of Robinson on a charge of wilful murder, the crime with which he was later charged? That is the first question. If the identity of a person who did a criminal act is in doubt, or could come in question at a trial, then obviously it is unlawful to publish in a newspaper that a particular person is the criminal. And, similarly, the publication of the photograph of an accused person may be harmful to a fair trial: R. v. Daily Mirror; Ex parte Smith (1927) 1 KB 845 . But in this case there could be no question that Robinson was the assailant. And the photograph of him was published, it is said, at the request of the police. In these circumstances the case against the newspaper could not depend upon the mere mention of his name or the publication of his photograph. But the Supreme Court considered that the articles tended to prejudice a fair trial, for two reasons: first, because they described the victims of the shooting as having been murdered; secondly, because of the publication of the detailed statements by eye witnesses and others. It is therefore necessary to consider what the articles actually said. I do not think it could be unlawful to state that two persons had been seen to be shot dead, that the man who shot them was - the fact being beyond dispute - a named person who was at large and sought for by the police. So much would seem to come well within the statement in the judgment of this Court in Packer v. Peacock [1912] HCA 8; (1912) 13 CLR 577 delivered by Griffith C.J., where his Honour said: "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" (1912) 13 CLR, at p 588 . Does it make any difference that the persons who met violent deaths were said to have been murdered? I do not think so. Of course, a homicide might not be the crime of murder; and a killer could not properly be called a murderer until he was found guilty. He might not be found guilty: he might be insane: the circumstances might make the homicide manslaughter. Nevertheless, I do not think that simply saying that a person, violently killed, was murdered necessarily amounts to an assertion that the killer was guilty of the crime of murder. Nor do I think that any magistrate or juror would be influenced to think so by the mere use of the phrase "two murdered" rather than "two shot dead". This is a description of an event rather than an accusation of a crime. The word "murder" is sometimes used in a more general sense than as definitive of the crime of murder. A layman may speak of a person having been murdered by a madman: indeed probably even lawyers in England, accustomed since 1883 to the verdict "guilty but insane", would not find such a statement incongruous. If the case depended only on the use, in the circumstances, of the word "murdered", I would think that there was no contempt of court. But it does not depend upon that alone. It depends upon the tendency or effect of the articles as a whole. The detailed accounts, allegedly quoted verbatim, given by persons likely to be called as witnesses, contain matter that might well be inadmissible at a trial. The publication of such matter when proceedings are pending is generally unlawful: Packer v. Peacock (1912) 13 CLR, at p 588 ; Ex parte Kear; re Consolidated Press Ltd. (1954) 54 SR (NSW) 95; 71 WN 52 . That indeed was virtually conceded. But it was argued for the appellants that they could not be found guilty of contempt of court, for two reasons. (at p612)

6. First, it was said that the Supreme Court of Western Australia has no jurisdiction to punish summarily for contempts committed out of court. Secondly, it was said that there could be no contempt of court, because at the time of the publication there were no proceedings pending before a court. (at p612)

7. The first proposition was based on an historical argument that was interesting and informative, but in my opinion ineffectual. Western Australia, on its foundation, inherited the common law. The Supreme Court there gets its authority to punish for contempt because it is a superior court of record: it has a jurisdiction similar to that which the Court of Queen's Bench had and exercised in 1861 (Supreme Court Act, s. 16 (1) (a)): the Criminal Code, s. 7 recognizes its authority "to punish a person summarily for the offence commonly known as 'Contempt of Court' but so that a person cannot be so punished, and also punished under the provisions of the Code for the same act or omission". The jurisdiction of the Supreme Court in relation to contempt is thus the same as that which the courts at Westminster had and exercised in 1861. But it was boldly argued that those courts could not then lawfully deal summarily with contempts, except those occurring within the court room or in the precincts, or arising from interferences with the officers of the court in the performance of their duties. Other forms of contempt, including the publication of matter likely to prejudice a trial, must, it was argued, have been tried by a jury. But, even if one assumes the provision in the Criminal Code Act to be less comprehensive than, at first sight, it seems to be, this argument conflicts at once with a multitude of English decisions running from the eighteenth century until the present time. Mr. Burt met all these by asking us to say that the courts had consistently defied, or at least disregarded, the Act passed by the Long Parliament in 1641, 16 Car. I c. 10, "for the Regulating of the Privy Council and for taking away the Court commonly called the Star Chamber". It enacted "that the said court commonly called the Star Chamber, and all jurisdiction, power and authority belonging unto or exercised by the same court or by any judges, officers or ministers thereof, be from the first day of August in the year of our Lord God 1641, clearly and absolutely dissolved, taken away and determined . . .". This, the Act recited, was done: "forasmuch as all matters examinable or determinable . . . in the court commonly called the Star Chamber may have their proper remedy and redress, and their due punishment and correction, by the common law of the land, and in the ordinary course of justice elsewhere". The summary procedure for contempt of court was, as a matter of history, the creature of the Star Chamber. Therefore, the argument ran, its adoption by the King's Bench in the eighteenth century was in contravention of the Act. The enacting provisions of the Act when read to-day certainly suggest there is force in this. But I am not persuaded that it is their true meaning and intent if they be read in the atmosphere of Restoration times or against the background of legal and political opinion of the eighteenth century. The King's Bench did undoubtedly much enlarge its jurisdiction by assuming some of the powers and adopting much of the doctrine of the Star Chamber; and this was thought to be lawful, as various statements, including that of Blackstone (4 Comm. 266), show. An important part of the inheritance of the King's Bench from the Star Chamber was the law of libel, criminal and civil. And the question of the jurisdiction to punish criminal contempts arising from printed works is related to the eighteenth century controversies about libels. Mr. Burt would then have found an ally for his argument in Junius, who said, in Letter Number 61, 17th October 1771: "The liberty of the press may be abused . . . but let the abuse be submitted to a jury - a sufficient, and indeed the only legal and constitutional check upon the licence of the press". So far as libel is concerned, the legal contest was ended in 1792 by Fox's Libel Act, 32 Go. III c.60; and the jury remained in full possession of the field. But the jurisdiction of the King's Bench to punish contempts was not affected; and it had come to be accepted that it could do so without the intervention of a jury. That this was a departure from the methods of the early common law now seems certain. Sir John Fox, in his notable series of articles in the Law Quarterly Review, exposed the historical inaccuracies in the judgment that Wilmot J. had intended to deliver in R. v. Almon (1765) Wilmot's Notes 243 [1765] EngR 25; (97 ER 94) . Of that judgment Sir William Holdsworth has said that it was "a decision for which there was little if any authority". But he added that "in spite of this fact, it was accepted as correct, and it forms the basis of the modern law on this subject": Holdsworth, History of English Law, iii, 394. The case itself had arisen out of an attack on Lord Mansfield. It thus dealt with a different species of contempt from that with which we are here concerned. The opinion of Wilmot J. has, however, been taken as justifying the use of a summary procedure to punish all forms of contempt, not only the scandalizing or unlawfully disparaging of courts, but all conduct that impedes or interferes with the performance by a court of its duty to administer justice according to law. Creating prejudice that may prevent the impartial consideration of a pending cause, civil or criminal, is thus summarily punishable as a contempt of court. The power to punish a newspaper for contempt was invoked in 1742 by Lord Hardwicke (Roach v. Garvan [1742] EngR 142; (1742) 2 Atk 469 (26 ER 683) ): and by the Court of King's Bench in R. v. Clement (1821) 4 B & Ald 218 (106 ER 918) . Since then there have been innumerable instances of newspapers being attached for contempt, in England, in Australia and other British Dominions, and in the United States of America. It is far too late now to overthrow all this, even if its historical foundations can be made to appear insecure. In the United States the scope of the jurisdiction to deal summarily with contempts has been the subject of differences of judicial opinion, because of the constitutional assurances of due process and freedom of speech and of the press. But that the jurisdiction exists is accepted by the Supreme Court of the United States. Frankfurter J., when a professor at Harvard, joined with Professor Landis in an article asserting that the foundations of the jurisdiction were unstable: 37 Harvard Law Review 1010, at p. 1046 et seq. But later he was constrained, as a judge, to say: "The fact that scholarship has shown that historical assumptions regarding the procedure for punishment of contempt of court were ill-founded, hardly wipes out a century and a half of the legislative and judicial history of federal law based on such assumptions": Green v. United States [1958] USSC 54; (1958) 356 US 165, at p 189 (2 Law Ed 2d 672, at p691) . (at p614)

8. I turn to the next argument for the appellants: that contempt of court by the publication of matter likely to affect a trial can only occur when the trial is pending. In case after case in England it has been said that the offence is committed when matter is published, with intent to affect or influence, or which is calculated to affect or influence, pending proceedings. Persuasive support for this proposition, with its requirement that proceedings must be pending, may be found also in American cases. (at p614)

9. The word "pending", in this context, is used in its ordinary legal sense as meaning that the trial or proceedings have been commenced and not completed. The rule applies equally to civil and to criminal proceedings. Once a matter becomes sub judice, and while it remains sub judice, comment that could influence judgment is unlawful. That is the basis of the rule. Lord Parker C.J. recently stated it as follows: "Logically, the first question is whether when the article was published the proceedings against the applicant were still sub judice or pending, so that the publication of improper matter might amount to a contempt of court. As to this, it is clear on the authorities that proceedings are pending in this sense from the time that a person is charged, even though he has not been committed for trial: cf. R. v. Parke (1903) 2 KB 432 . When proceedings cease to be pending is not clear in the authorities . . .": R. v. Duffy; Ex parte Nash (1960) 2 QB 188, at p 195 . In that case the question arose because the matter complained of was published after the applicant had been convicted of a crime, against which conviction he later appealed to the Court of Criminal Appeal. The question was therefore whether proceedings were still pending; for, obviously, nothing that is said after a case is over can influence the result of it. It does not follow, however, that contempts of a different kind may not be committed by things done or said after a trial is over; and they may have been provoked by it. But they are then punishable because they may affect the administration of justice generally, not because they can affect the proceedings in the particular case. The recent case of Attorney-General v. Butterworth (1963) 1 QB 696 concerned conduct of that kind. It is a different form of contempt from that in question here. That case therefore provides no answer to the present question, which arises not because proceedings had ceased to be pending, but because they had not become pending when the matter complained of was published. In the decisions on this topic a civil action has been taken to be pending from the issue of the writ; and it seems that there is no case in which it has been suggested that a publication before action begun could be a contempt in relation to civil proceedings. In criminal cases proceedings for contempt have never, until this case, been based upon matter published before a complaint was laid and a summons issued, or a man charged, or arrested with a view to his being charged. Once a person is under arrest a court has become seised of the case, because the arrested man must be taken before a magistrate. In Packer v. Peacock (1912) 13 CLR 577 this Court said: "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" (1912) 13 CLR, at p 586 . In Reg. v. Odhams Press Ltd. (1957) 1 QB, at p 79 Lord Goddard C.J. said: ". . . in our opinion a review of the cases shows that persons who publish matter of this description charging alleged offences against the criminal law do so at the risk of not only being sued for libel but also being punished for contempt if the criminal law has been set in motion. And the same is true if civil proceedings have been started, at least if they are of a common law nature and may be heard before a jury" (1957) 1 QB, at p 79 . As the courts now take cognizance of publications in newspapers after an arrest but before an indictment or committal for trial, the expression "if the criminal law has been set in motion" is perhaps more exact than was "when a trial is pending". But it has, it seems to me, the same limiting effect. The old law about hue and cry is long obsolete. It cannot I think be said, in any exact sense, that the criminal law has been set in motion because police are looking for a man. (at p616)

10. Yet it is possible "very effectually to poison the fountain of justice before it begins to flow": and therefore there have been suggestions that a contempt might be committed "when proceedings are imminent but have not yet been launched": R. v. Parke (1903) 2 KB, at p 437; R. v. Daily Mirror; Ex parte Smith (1927) 1 KB, at p 851 . And the learned judges of the Supreme Court, impressed by the fact that the mischief was the same if the publication was made shortly before arrest as if it were afterwards, held that they had and should exercise power to punish for contempt in this case. Their Honours said that where "the apprehension of the accused and the taking of criminal proceedings against him on a particular charge were not merely conjectural but were a matter of virtual certainty, and were in fact imminent, and where the publication is clearly calculated to prejudice his fair trial on that charge, this court should not shrink from invoking the jurisdiction to punish those responsible". I appreciate the force of this. I certainly would not suggest that the Supreme Court, or this Court, should shrink from invoking any jurisdiction that it has to put down a mischief. But I have come to the conclusion - not, I hope, the result of shrinking or timidity - that the power to punish for contempt of court could not properly be exercised in respect of these articles at the time they were published. That Robinson had been arrested before the application for an attachment of the newspaper was instituted is, in my view, immaterial: there is no such thing, I think, as "contingent contempt", to adopt the phrase of Keating J. in Metzler v. Gounod (1874) 30 LT 264. Mr. Wilson, appearing for the Crown as amicus curiae, supported the view taken in the Supreme Court, and pointed to the desirability of defining this form of contempt solely by the character of the publication and its likely effect on expected curial proceedings, rather than by the fixing of a point of time before which words published would not be a contempt and after which they would be. But we are concerned with a criminal offence, and one triable otherwise than by the ordinary processes of the criminal law. Its limits are not at large. That the harmful consequences of a publication made before proceedings are commenced may be no less than if it were made afterwards does, naturally, seem a ground for saying that it too should be unlawful. And it well may be. But it is not punishable by summary procedure as a contempt: that is all that I mean to decide. Contempt of court is historically, and by its name and nature, concerned with the position of courts, with proceedings in court and with the protection of parties to proceedings in court. Whatever view one may hold on the question - much discussed since the decision of the House of Lords in Shaw v. Director of Public Prosecutions [1961] UKHL 1; (1962) AC 220 - of the province of judges as custodes morum, it seems to me, with respect, that the decision of the Supreme Court involved not merely the making of a new precedent, but a departure from old principle, already extended to its utmost limit. The distinction may seem illusory; but I do not think that it is. The judgments in this Court in Porter v. The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432 are against the view taken in the Supreme Court. Higgins J. said "I am not at all sure that under modern developments of journalism the principle is satisfactory" (1926) 37 CLR, at p 448 . It may be even less satisfactory to-day than it was when his Honour spoke. But, if it is to be altered, that must, I consider, be done by the legislature. (at p617)

11. In England some modifications of the law concerning contempt were made by the Administration of Justice Act, 1960. Section 11(1) of that Act was referred to, incidentally, in the Supreme Court. But that provision can have little, if any, weight in the determination of the present question. It alters in one respect the law as stated in Reg. v. Odhams Press Ltd. (1957) 1 QB 73; and it perhaps assumes that a publication calculated to interfere with the course of justice could be held to be a contempt if proceedings were at the time imminent. Presumably the word "imminent" was introduced because of the suggestion made by Lord Hewart C.J. in R. v. Daily Mirror; Ex parte Smith (1927) 1 KB 845. It is, however, an imprecise word by which to mark out a period of time. And it seems uncertain whether the imminence of the event is determinable solely by what was expected at the time of publication, or is to be judged by what in fact occurred. The only suggestion I have seen as to the effect of the Act in this respect is in the annotation of it in Halsbury's Statutes of England, 2nd ed. vol. 40, p. 218. There it is said "proceedings may be imminent where, for example, no one has yet been charged with a crime but an arrest is hourly expected". But the only authority for this is an utterance in Parliament, and what a Lord Chancellor, speaking in Parliament, says in his legislative capacity, can hardly be used by a court to interpret a statute. The Act may allow courts in England to take a step that I think we cannot take. It may, by an indirect approach, have thus altered the law there. But it has no application in Australia. Here the law, as I understand it, is that matter published in a newspaper concerning a person against whom no proceedings are pending cannot be a contempt of court. That does not mean, however, that prejudicial matter that is not summarily punishable as a contempt can be published with impunity. The common law misdemeanour constituted by conduct tending to pervert the course of justice does not, it has been held, depend upon there being proceedings presently pending: R. v. Sharpe and Stringer (1938) 1 All ER 48; (1938) 26 Cr AppR 122 . In Western Australia the common law on this topic has, it seems, been supplanted by ss. 135 and 143 of the Criminal Code. But we do not have to determine their scope: the only question for us is whether the summary conviction for contempt can stand. I agree that it cannot, and that the appeal must be allowed. (at p618)

ORDER

Appeal allowed with costs.

Discharge order of the Supreme Court and in lieu thereof order that the motion be dismissed with costs to be taxed on the higher scale set out in Appendix "N" of the Rules of the Supreme Court with certificates for second counsel and for two attendances to hear judgment and (if considered necessary by the Taxing Master) for a conference.