Litaba, Oyiela --- "Does the 'Offence' of Contempt by Scandalising the Court Have a Valid Place in the Law of Modern Day Australia?" [2003] DeakinLawRw 6; (2003) 8(1) Deakin Law Review 113
[*] Senior Lecturer, Faculty of Law, Monash University.
[1] A detailed study of the role of parliamentary privilege is outside the scope of this article. For an analysis of the parliamentary rules regarding comment on the conduct of judges and the role of Attorneys General in defending members of the judiciary, see E Campbell and M Groves, 'Attacks on Judges Under Parliamentary Privilege: A Sorry Australian Episode' [2002] Public Law 626-39.
[2] Eg County Court Act 1958 (Vic) s 54A (1) (a) the source of the jurisdiction in Lewis v Judge Ogden (1984) 153 CLR 682 and Magistrates’ Court Act 1989 s 133, the source of the charge in The Magistrates' Court at Prahran v Murphy (1997) 2 VR 186.
[3] [1983] HCA 2; (1983) 45 ALR 53.
[4] Ibid 57.
[5] In 1987 the Australian Law Reform Commission considered scandalising as part of Contempt, Report No 35. The chapter 10 of that report outlines the offence, considers the justifications for and appropriateness of the offence and recommends a limiting of the offence. The recommendations were not implemented.
[6] See Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 ; Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 (High Court of Australia) and commentary on this issue which includes, Adrienne Stone, 'Lange, Levy and the Direction of Freedom of Political Communication Under the Australian Constitution' [1998] UNSWLawJl 38; (1998) 21 University of New South Wales Law Journal 117; Adrienne Stone and George Williams, 'Freedom of Speech and Defamation: Developments in the Common Law World' [2000] MonashULawRw 15; (2000) 26 Monash University Law Review 362.
[8] In Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545, a case which reached the High Court on the preliminary question of whether the matter could be dealt with summarily or must be pursued on indictment as a ‘law of the commonwealth’ under s 80 of the Constitution, Gleeson and Gummow JJ state at [4]:
The policy of the common law in this area has been the subject of controversy. The nature and scope of possible defences, and the effect of the law concerning freedom of expression and political discussion, may be matters to be determined.
[9]Although there is little recent academic comment on scandalising the first instance decision of Eames J in R v Raymond Terrance Hoser; Ex parte Attorney General (Vic) (Applicant) [2001] VSC 443 (unreported) includes a review of conduct which scandalises the court (paragraphs 45-55) and of the defences of truth and fair comment (paragraphs 58-910).
[10] Nigel Lowe and Brenda Sufrin, Borrie & Lowe's The Law of Contempt (1996) provides a useful starting point in this regard. The background and context to a large number of the cases in this area can be found in David Pannick, Judges, (1987). See also the Heads of argument of the Amicus Curae in the case of S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409 before the Constitutional Court of South Africa accessible via the Constitutional Court’s web site at <http://www.concourt.gov.za/> . The amicus curae argued that ‘the common law test for scandalising the court entails an unjustifiable limitation on freedom of expression and is unconstitutional’ and that the ‘summary procedure for contempt, if applied to contempts committed ex facie curiae and not related to pending proceedings, entails an unjustifiable violation of the right to a fair trial.’
[11] This analysis adopts a structure suggested by Barend van Nierkerk, The Cloistered Virtue: Freedom of Speech and the Administration of Justice in the Western World (1987) Chapter 1,1-45.
[12] R v Kopyto (1987) 47 DLR (4th) 213.
[13] Chaudhary v Attorney-General [1999] FJCA 23.
[14] Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46 and Wong Yeung Ng v The Secretary for Justice [1999] HKCA 66 HKCA.
[15] Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305.
[16] Ibid, as required by the Constitution of Mauritius.
[17] S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409.
[18] See Michael K Addo, 'Are Judges beyond criticism under article 10 of the European Convention on Human Rights' (1997) 47 International and Comparative Law Quarterly 425. For a review of the position across Europe see Michael Addo (ed) Freedom of Expression and Criticism of Judges: A Comparative Study of European Standards (2000).
[19] Lange [1997] HCA 25; (1997) 189 CLR 520
[20] R v Gray [1900] UKLawRpKQB 63; [1900] 2 QB 36, 40 (Lord Russell of Killowen CJ). Mr Gray, editor of the Birmingham Daily Argus, was fined 100 pounds plus costs for publishing an article which described the way in which Mr Justice Darling had warned the press against printing allegedly indecent aspects of evidence likely to arise in an upcoming case. The article included the following ‘No newspaper can exist except on its merits, a condition from which the bench, happily for Mr Justice Darling, is exempt. There is not a journalist in Birmingham who has anything to learn from the impudent little man in horsehair, a microcosm of deceit and empty headedness, who admonished the press yesterday’. The QB reports do not include the text of the article but it can be found at 82 LT Reports 534. For further discussion of the background to this case and criticism of Mr Justice Darling see Pannick, Judges (1987) OUP,111-112.
[21] Ibid. Approved in Ambard v Attorney General of Trinidad and Tobago [1936] 1 All ER 704.
[22] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545,[16] per Gleeson CJ and Gummow J.
[23] Ibid, as was s 35 of the Family Law Act 1975 (Cth) under which Mr Torney had been charged.
[24] Porter v R; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432,432.
[25] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545.
[26] Four justices found that the offence did not arise under a ‘law of the commonwealth’ and, therefore, fell outside any guarantee of trial by jury under s 80 of the Constitution; McHugh J viewed s 80 as inapplicable because the charges were not made on indictment and Kirby J gave a detailed dissent which includes his opinion on the role of section 80 of the Constitution as a guarantee of trial by jury: paras 95-104. See also Grant Webster,' Trial by jury? Re Colina; ex parte Torney' [2000] DeakinLawRw 11; (2000) 5 Deakin Law Review 217.
[27] Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305. [21] citing Reg. v. Gray [1900] UKLawRpKQB 63; [1900] 2 Q.B. 36, 40; Ambard v. Attorney-General for Trinidad and Tobago [1936] A.C. 322,335; and Badry v. Director of Public Prosecutions [1983] 2 A.C. 297.
[28] Bennett v Southwark London Borough Council (2002) EWCA Civ 223, [27].
[29] Lowe and Sufrin, above n 10.
[30] Dated 14 February 1968 under the heading 'Political Parley' and written by Quentin Hogg, then a prominent QC and later Lord Chancellor.
[31] R v Police Commissioner of the Metropolis, Ex parte Blackburn (No 2) (1968) 2 QB 150, 154.
[32] Badry v The Director of Public Prosecutions (Mauritius) [1982] 2 AC 297 ('Badry').
[33] Mr Glover, later the target of comments in Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305.
[34] Appeal against this aspect was allowed on the separate ground that the statement was made in respect of the judge’s role as a commissioner rather than as a judge.
[35] Badry [1982] 2 AC 297.
[36] Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Australia) VSC 430.
[37] Badry [1982] 2 AC 297.
[38] The words used were ‘Justice Beach has got his hand on his dick’.
[39] Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Australia) VSC 430, [22].
[40] Saltalamacchia v Parsons [2000] VSCA 83.
[41] In Gallagher the defendant was expressing approval of the decision but was taken to be alleging that it had been brought about by the intimidating influence of his union members.
[42] Badry [1982] 2 AC 297.
[43] Solicitor General v Radio New Zealand [1993] NZHC 423; [1994] 1 NZLR 48 citing: Solicitor-General v Radio Avon Ltd 1 [1978] NZLR 225 Hinch v Attorney-General (Vic) 23, 34, and 47; Attorney-General v New Statesman and Nation Publishing Co Ltd, 10, following Attorney-General v Leveller Magazine Ltd [1979] AC 440, 465 (Lord Edmund-Davies), and Hinch v Attorney-General [1987] VicRp 62; [1987] VR 721, 740, 742.
[44] Solicitor General v Radio New Zealand [1993] NZHC 423; [1994] 1 NZLR 48.
[45] Ibid.
[46] In re: Chinamasa (2000) 12 BCLR 1294.
[47] S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409.
[48] Chaudhary v Attorney-General [1999] FJCA 23; Badry [1982] 2 AC 297.
[49] R v Kopyto (1987) 47 DLR (4th) 213; Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Australia) VSC 430; Lewis v Judge Ogden 153 CLR 682; R v Police Commissioner of the Metropolis, Ex parte Blackburn (No 2) (1968) 2 QB 150.
[50] S v Van Nierkerk (1970) 3 SA 655 (T) and S v Van Nierkerk (1972) (3) SA 711. Van Nierkerk (whose book is referred to above n 11, was prosecuted following the publication by him of research indicating judicial bias against black South Africans in the imposition of the death penalty.
[51] Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53; Attorney -General (New South Wales) v Mundey 2 NSWLR 887.
[52] Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46; Ahnee [1999] UKPC 11; [1999] 2 WLR 1305; Solicitor-General v Radio Avon Ltd 1 [1978] NZLR 225; Wade and another v Gilroy [1986] FamCA 6; (1986) 83 FLR 14; Schwartkopff, In the Marriage of; Fitzgibbon v Barker (1992) 16 Fam LR 539.
[53] See, eg. The editorial in The Australian 15 - 16 June 2002 which was indignant over the result in Popovic v Herald and Weekly Times Limited 2002 VSC 174 (unreported) where a journalist employed by an associated newspaper was found to have defamed a Magistrate.
[54] R v Kopyto (1987) 47 DLR (4th) 213, 11 (Cory JA). A similar point was made by Evatt J in R v Fletcher; ex parte Kisch [1935] HCA 1; 52 CLR 248 , 259 where he notes ‘ the articles and letters complained of, though admittedly intemperate and unwarranted, bore on their face sufficient evidence of such qualities as to destroy their effectiveness.’
[55] Hoser [2001] VSC 443 (unreported).
[56] The first defendant, Hoser, was the author of booked entitled ‘Victoria Police Corruption’ and ‘Victoria Police Corruption 2’ which included comments about, and allegations of bias or corruption on the part of, a number of named judges and magistrates.
[57] Halsbury's Laws of Australia, on-line edition.
[58] Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53, 243 (Gibbs CJ Mason, Wilson and Brennan JJ).
[59] R v Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248, 257 (Evatt J) as cited in Halsbury's Laws of Australia, on-line edition.
[60] Ibid.
[61] R v Almon [1765] EngR 25; (1765) 97 ER 94. A detailed examination of the political history or background to this ‘undelivered’ judgment can be found in Douglas Hay, 'Contempt by Scandalizing the Court: a political history of the first hundred years' (1987) 25 Osgoode Hall Law Journal 431.
[62] R v Almon [1765] EngR 25; (1765) 97 ER 94.
[63] Ambard [1936] 1 All ER 704.
[64] Ahnee [1999] UKPC 11; [1999] 2 WLR 1305, [21] citing R v Nicholls [1911] HCA 22; (1911) 12 CLR 280. See also Solicitor General v Radio Avon Ltd where the New Zealand Court of Appeal contests the idea that Lord Atkin’s comments in Ambard65 should be taken to ‘exclude from protection any form of criticism imputing improper motives to those taking part in the administration of justice’ on the grounds that: ‘If this were the law then nobody could publish a true account of the conduct of a judge if the matter published disclosed that the judge had in fact acted from some improper motive. Nor would it be possible, on the basis of facts truly stated, to make an honest and fair comment suggesting some improper motive, such as partiality or bias, without running the risk of being held in contempt.’
[66] Ambard v Attorney General (1936) AC 322, final paragraph.
[67] ALRC report No 35, above n 5.
[68] Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53; R v Fletcher; Ex parte Kisch (1935) [1935] HCA 1; (1935) 52 CLR 248; Re 'The Evening News' (1980) 1 NSWLR 211,241-2; Ibid, 183.
[69] ALRC report No 35, above n 5, [415]. The Report recommended such a defence but no legislative change resulted from the recommendation.
[70] Nationwide [1992] HCA 46; (1992) 177 CLR 1.
[71] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545.
[72] Nationwide [1992] HCA 46; (1992) 177 CLR 1.
[73] Which provided that ‘a person shall not by writing or speech use words calculated... to bring a member of the Commission or the Commission into disrepute.’
[74] Nationwide News Pty v Wills [1992] HCA 46; (1992) 177 CLR 1 (Brennan J).
[75] R v Nicholls [1911] HCA 22; (1911) 12 CLR 280, 286.
[76] Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53.
[77] Citing Evatt J in R v Fletcher; Ex parte Kisch (1935) 52 CLR ,257 – 258.
[78] Hoser [2001] VSC 443 (unreported).
[79] Ibid, [167].
[80] Ibid, [190].
[81] Ibid, [203].
[82] Chaudhary v Attorney-General [1999] FJCA 23 (Fiji Court of Appeal). This was a case where no ‘credible evidence’ was offered to the court as to the grounds of Mr Chaudhry’s belief.
[83] Solicitor-General v Radio Avon Ltd 1 [1978] NZLR 225.
[84] Chaudhary v Attorney-General [1999] FJCA 23, [17] (Fiji Court of Appeal).
[85] These difficulties were recognised by the ALRC and the UK Phillimore Commission.
[86] The case law on the public interest defence in the context of sub judice is instructive here. This is so despite the fact that it deals with the possibility of prejudice to particular proceedings as opposed to prejudice to the administration of justice as a continuing process. Balancing the different public interests in a case of alleged scandalising may involve both the prosecutor and the accused claiming to be pursing the very same interest. Each seeks to the protect justice as a continuing process; the one by restricting speech the other by pointing out deficiencies in the process.
[87] (1937) 37 SR (NSW)
[88] Ibid 242
[89] [1987] HCA 56; (1987) 164 CLR 15.
[90] Such as is said to exist in the context of legal professional privilege.
[91] See Felicity Robinson ‘No, No! Sentence First – Verdict Afterwards’: Freedom of the Press and Contempt by Publication in Attorney General For the State of New South Wales v X 23' [2001] SydLawRw 11; (2001) 23 Sydney Law Review 261.
[92] [2000] NSWCA 199; 49 NSWLR 653 Spigelman CJ and Priestley JA; Mason P dissenting.
[93] Discussed in Part V below.
[94] Ibid [110] and [111]. It had therefore been open to the trial judge (Barr J in AG for the State of New South Wales v John Fairfax Publications Pty Limited [1999] NSWSC 318) to hold that public interest in discussion of new drug dealers could protect the publication from a charge of contempt despite its acknowledged prejudicial effect on the right of the alleged drug dealer to a fair trial.
[95] If an individual’s right to a fair trial can be jeopardised by relaxing contempt law in this way (albeit that doing so may be a means of adapting and changing the common law to accommodate the new constitutional freedom), it becomes harder to justify the continued existence of contempt by scandalising.
[97] Ibid [435].
[98] Nigel Lowe and Brenda Sufrin, Borrie & Lowe's The Law of Contempt (1996).
[99] Ibid.
[100] Gallagher [1983] HCA 2; (1983) 45 ALR 53.
[101] Ibid 59.
[102] In re: Chinamasa (2000) 12 BCLR 1294, 1349.
[103] Solicitor-General v Radio Avon Ltd 1 [1978] NZLR 225, 234.
[104] Van Nierkerk, above n 11.
[105] A South African academic charged with contempt on account of his research into the disproportionate use of the death penalty in sentencing black South Africans. See above n 50.
[106] Cited as Thomas I Emerson, The System of Freedom of Expression (1970).
[107] Hoffmann LJ in R v Central Television Plc (CA) [1994] Fam 192 at 202H to 203C as cited by Mortimer V-P in Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46.
[108] David Pannick, Judges (1987) 105.
[109] Where the offence of contempt in the face of the court or a statutory offence of ‘wilful insult’ may be more relevant as in The Magistrates' Court at Prahran v Murphy (1997) 2 VR 186 and Lewis v Judge Ogden 153 CLR 682
[110] R v Kopyto (1987) 47 DLR (4th) 213. Discussed below n ?.
[111] The Australian approach to judicial bias as developed in Johnson v Johnson provides greater scope for seeking a change of judge or tribunal than may be the case elsewhere in the common law world. This may provide an argument for the continuance of the offence even as the existence of a summary jurisdiction works against it.
[112] See Stone and Williams, above n 5, for a review of this concept in the common law world.
[113] Wong Yeung Ng v The Secretary for Justice [1999] HKCA 66 HKCA per Mortimer V-P. This case provides an example of a prosecution for scurrilous abuse of an extreme nature.
[114] Attorney -General (New South Wales) v Mundey 2 NSWLR 887.
[115] Ibid. As cited in Sally Walker, Media Law Commentary and Materials (2000) 621.
[116] In New South Wales this can be done by contacting the Judicial Commission see <http://www.judcom.nsw.gov.au/complaints.htm> for a summary of the procedure.
[117] See, eg: an analogous situation where extra damages were awarded against Andrew Bolt in the defamation case of Popovic v Herald and Weekly Times Limited 2002 VSC 174 (unreported).
[118] Johnson v Johnson (2000) HCA 48 citing, for example, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41.
[119] For an analysis of the way in which the defence of ‘truth’ can nevertheless restrict even responsible reporting (in the context of defamation) see Stone and Williams, Freedom of Speech and Defamation: Developments in the common law world, above n 6.
[120] Addo, above n 18.
[121] R v Police Commissioner of the Metropolis, Ex parte Blackburn (No 2) (1968) 2 QB 150, 155 (Lord Denning MR).
[122] See Sir Anthony Mason, 'No place in a modern democratic society for a supine judiciary' (1997) 35 (11) Law Society Journal 51; Daryl Williams Judicial Independence (1998) 36 Law Society Journal 50 and E Campbell and HP Lee, The Australian Judiciary (2001) 254-256.
[123] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545.
[124] Bernard Lane, 'Street protester beats judges at own game', The Australian, March 8 2000, Features; 14.
[125] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545 where part of the speech is set out in para 9.
[126] R v Police Commissioner of the Metropolis, Ex parte Blackburn (No 2) (1968) 2 QB 150.
[127] Set out by the UK Lord Chancellor in a letter to the Director General of the BBC written in 1955 to prevent judges from being involved in the entertainment that might be provided by a series of radio lectures about great judges of the past.
[128] The matter was before the High Court on an application to prevent a judge of the Family Court hearing the contempt allegations. One of the grounds put forward was that in the light of the Chief Justice’s speech the judge before whom the matter was to be heard was disqualified from hearing it and/or there could not be a fair trial.
[130] Ibid, 912.
[131] See Mundey 2 NSWLR 887, 913.
[132] See Badry [1982] 2 AC 297.
[133] Bennett (2002) EWCA Civ 223. The case came before the Court of Appeal (Civil Division) as cross appeals. An Industrial Tribunal had recused itself because the members ‘concluded that they could not continue to hear a case on race discrimination in which they themselves had now been accused of racism’. A reconstituted Tribunal struck out the claim under rule 13(2) (e) of the Employment Tribunal (Constitution and Rules of Procedure) regulations 1993 which provides ‘A Tribunal may... order to be struck out any originating application... on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant...has been scandalous, frivolous or vexatious.’ and the appeal was a successful attempt to overturn that decision.
[134] Ibid [19] (Sedley LJ).
[135] Ibid [39].
[136] Ibid [42].
[137] For arguments as to the disadvantages of the summary a procedure see the dissenting judgment of Kirby J in In re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545 [95] to [104]. Also the judgment of the South African Constitutional Court in S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409 where it was held that ‘the summary contempt procedure employed in the present case is, save in exceptional circumstances such as those in Chinamasa’s case where ordinary prosecution at the instance of the prosecuting authority is impossible or highly undesirable, a wholly unjustifiable limitation on individual rights and must not be employed’ [58] (footnotes omitted); Chinamasa was the Attorney General of Zimbabwe and the case is discussed below.
[138] Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53; Attorney -General (New South Wales) v Mundey 2 NSWLR 887.
[139] Badry [1982] 2 AC 297; Wong [1999] HKCFA 46; Ambard [1936] 1 All ER 704; McLeod v St Aubyn [1899] UKLawRpAC 33; [1899] AC 549; Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305.
[140] Attorney -General (New South Wales) v Mundey 2 NSWLR 887; Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46.
[141] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545; Schwartkopff, In the Marriage of; Fitzgibbon v Barker (1992) 16 Fam LR 539.
[142] R v Kopyto (1987) 47 DLR (4th) 213; Hoser [2001] VSC 443 (unreported).
[143] Colin Warbrick as cited in Addo, above n 18.
[144] Australian Press Council submission (1 November 1983) as cited in para 453 of ALRC Report. above n 5.
[146] S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409, 72 per Sachs J.
[147] Johnson v Johnson (2000) HCA 48.
[148] Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
[149] Opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976).
Article 14 reads:
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ...
[150] Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September 1985, U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985). Also available at <http://www.law.monash.edu.au/humanrts/instree/i5bpij.htm> .
[151] Milton, South African Criminal Law and Procedure (1996) 187-188 as cited by Sachs J in S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409 [67].
[152] In terms of actual prosecutions, though the threat of prosecutions may be more common.
[153] See Stone and Williams, above n 6, for a review of US cases using this term.
[154] ALRC Report above n 5. The report goes on to quote from a conference paper delivered to a Conference on Contempt of Court, Media Law Association of Australasia, Regent Hotel, Melbourne (16 June 1984) 17-8
One can’t help wondering if the Attorney General would have taken action [in the Gallagher case] if the Chamber of Commerce had commented in the same way.
[155] [1899] UKLawRpAC 33; [1899] A.C. 549; cited with approval by Hope JA in Attorney -General (New South Wales) v Mundey 2 NSWLR 887.
[156] Ambard v Attorney General (1936) AC 322 where the appeal was nevertheless allowed on the facts because of ‘a misconception of the doctrine of contempt as applied to public criticism’.
[157] Ibid,
[158] Thio Li-Ann, 'An 'i' for an 'I'? Singapore's Communitarian Model of Constitutional Adjudication' (1997) 27 Hong Kong Law Journal 152, 176.
[159] In re: Chinamasa 2000 (12) BCLR 1294.
[160] David Feldman, Civil Liberties and Human Rights in England and Wales (1993) 746 –747 (cited in Ahnee. Feldman refers to the ‘stability and structure of particular societies’ as possible grounds for suggesting that ‘[t]here may, therefore, be a core of good sense in the apparently patronising and possibly racist comments of Lord Morris’.
[161] For arguments that the offence requires ‘excessive emphasis on the impact of loss of public confidence’ and that the maintenance of public confidence is ‘not an absolute good’ see ALRC Report No 35, above n 5, paragraphs 424 and 425. See also Justice Michael Kirby, 'Attacks on Judges - A Universal Phenomenon' (1999) 72 Australian Law Journal 599 for reflections on the need for public education in this area.
[163] In this case the reputation of the justice system.
[164] Helen Steel and Dave Morris the ‘McLibel’ defendants in a case brought by Mc Donald’s Corporation and McDonald's Restaurants Limited as quoted in No Logo, Flamingo, London, 2001, 435. Helen Marie Steel and David Morris v McDonald’s Corporation and McDonald’s Restaurants limited [1999] EWCA Civ 1144 (31st March 1999).
See also <http://www.mcspotlight.org/> for various unofficial copies of court documents in a case which provides a clear example of how the oppressive use of the courts to limit speech may backfire.
[165] Campaigner against the construction of a damn in the Narmada Valley in central India and, inter alia, winner of the Booker prize for her novel 'The God of Small Things'.
[166] See <http://www.dfn.org/news/india/roy-jailed.htm> for the comments by parts of he Indian Press on alleged moves to restrict the powers of Indian judges.
[167] Ibid.
[168] Which depending on the context may be the Attorney General or DPP rather than the courts.
[169] See also Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305 where the newspaper article arose in the context of defamation proceedings brought by the Chief Justice over ‘serious allegations about...impartiality’.
[171] Meredith Burgman Verity Burgman, Green Bans, Red Union: Environmental activism and the New South Wales Builders Labourers' Federation (1998) 132.
[172] Set out in above n 148 .
[173] Article 19
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 reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
[174] R v Kopyto (1987) 47 DLR (4th) 313.
[175] Ahnee referred to above, n 27, for a description of the ‘narrow’ definition of scandalising at common law. The case was an appeal from a judgment of the Supreme Court of Mauritius convicting a journalist, editor and the owner and publisher of Le Mauricien and fining each of them 1000,000 rupees.
[176] Which were subject to a qualification ‘for the purpose of... maintaining the authority and independence of the courts’
[177] See Chaudhary v Attorney-General [1999] FJCA 23, an unsuccessful appeal against his conviction by the Prime Minister of Fiji in respect of statements he had made as leader of the opposition. The defendant was ordered to pay the costs of the proceedings but received no further punishment.
[178] Described as a consideration of whether the means are rationally connected to the objective and are not arbitrary, unfair or based on irrational considerations and are such that their effects on the limitation of rights and freedoms are proportionate. See below n 202.
[179] In re: Chinamasa (2000) 12 BCLR 1294. A case which followed comments by the Attorney General of Zimbabwe faulting what he saw as lenient sentences in a case involving gun running and mercenary/paramilitary activities.
[180] Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46; also at <http://www.worldlii.org/hk/cases/HKCFA/1999/46.html> an extreme case of scurrilous abuse and allegations of impartiality directed at a judge of the Obscene Articles Tribunal of Hong Kong (together with a campaign of harassment seen as direct interference) by a Chinese language newspaper with 2.3 million readers. For the reference to the judgement of the Hong Kong Court of Appeal see above n 112.
[181] S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409. An appeal against the conviction of a media officer of the Department of Correctional Services following comments concerning the order made on a bail application by Eugene Terre Blanche leader of the Afrikaner group Weerstandsbeweging.
[182] Though the summary procedure was to be reserved ‘for the most exceptional cases only. Ibid [58].
[183] Ibid [14].
[184] Section 12:
'(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
(a) in the interests of defence, public safety, public order, public morality or public health;
(b) for the purpose of ... maintaining the authority and independence of the courts ...
(c) ...
except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.'
[185] Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305 , [21].
[186] Ibid. In dealing with the other constitutional points their Lordships decided that the meaning of scandalising the court is clear from the case law, and the range of appropriate penalties was at all times apparent from the decisions of the Supreme Court (of Mauritius). Whether this last point could be the case in a country with no history of the regular use of the scandalising jurisdiction is doubtful, but this is a difficulty that applies to the contempt as a whole.
[187] Quoted in text above n 154 above and including reference to ‘small colonies consisting primarily of coloured populations’.
[188] Civil Liberties and Human Rights, in England and Wales, 1993, 746-747. (book or report?)
[189] Barendt, Freedom of Speech (1985), 218-219.
[191] R v Kopyto (1987) 47 DLR (4th) 213.
[192] Cory JA, Houlden JA and Goodman JA.
[193] R v Kopyto (1987) 47 DLR (4th) 213 , 8.
[194] Citing Retail, Wholesale & Department Store Union, Local 580 v Dolphin Delivery Ltd (1986) 33DLR (4th) 174, and McIntyre J’s references to John Stuart Mill, On Liberty and Considerations of Representative Government (1946) and John Milton’s Areopagitica; A Speech for the liberty of Unlicenc’d printing, to the Parliament of England (1664); R v Zandel (1987), 58 OR (2d) 129, 35 DLR (4th) 338 and the US cases of Garrison v State of Louisiana, [1964] USSC 217; 379 US 64 (1964) and New York Times Co. v Sullivan, 376 US, 270.
[195] Section 1 reads:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[196] Those chosen were the United States, Australia, New Zealand the United Kingdom and the European Court of Human Rights.
[197] at 26. Dubin J in his dissent took the view that the majority judges had ‘purported to follow American precedent in preference to long-standing precedent in the United Kingdom, in Canada, throughout the Commonwealth and to that on the European convention on Human Rights, 1950’
[198] Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305.
[199] Chaudhary v Attorney-General [1999] FJCA 23.
[200] The paragraph read:
'There has been public suspicion since the coups that many in our judicial system are corrupt. In several cases well known lawyers have been identified as receiving agents for magistrates and judges. A number of lawyers are known to arrange for them to appear before their preferred magistrates or judges.'
[201] Section 13(2).
'Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision - ...
(b) for the purpose of ... maintaining the authority and independence of the Courts ...;
except so far as that provision ... is shown not to be reasonably justifiable in a democratic society.'
[202] Chaudhary v Attorney-General [1999] FJCA 23; referring to R v Oakes (1986) 26 DLR (4th) 200 as summarised by the Supreme Court of Canada in R v Chaulk (1991) 2 CR (4th) 1, 27-28:
1. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterised as sufficiently important.
2. Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass the proportionality test; that is to say they must:
a) be ‘rationally connected’ to the objective and not be arbitrary, unfair or based on irrational considerations;
b) impair the right or freedom in question ‘as little as possible’; and
c) be such that their effects on the limitation of rights and freedoms are proportionate to the objective.
[203] Ibid [22] citing Ministry of Transport v Noort [1992] 2 NZLR260 (CA).
[204] A reference to s13(2) (b) of the 1990 Constitution.
[205] Solicitor-General v Radio Avon Ltd 1 [1978] NZLR 225.
[206] Chaudhary v Attorney-General [1999] FJCA 23 [24].
[207] Ibid [25].
[208] Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46; also at <http://www.worldlii.org/hk/cases/HKCFA/1999/46.html>
[209] The newspaper had been convicted and fined $5 million but did not appeal.
[210] Bill of Rights Ordinance (Cap. 383), Article 16 follows exactly the wording of Article 19 of ICCPR; above n 172
[211] Kopyto (1987) 47 DLR (4th) 213.
[212] Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46 per Mr Justice Litton PJ.
[213] Before the Court of Final Appeal.
[214] Wong Yeung Ng v The Secretary for Justice [1999] HKCA 66 HKCA.
[215] Leong JA, in Court of Appeal, states that the judges below
were entitled to conclude that “the newspaper clearly wanted its readers and the public to believe, that the \judiciary was an instrument of political persecution and that the judges had no integrity at all” and if that were believed, “ there would be very little left in the confidence of the public in the administration of justice in Hong Kong.” Their finding was clearly supported by the evidence...
[216] In re Chinamasa (2000) 12 BCLR 1294.
[217] He had added that this:
came against the backdrop of repeated complaints made to him by his law officers of hostility and verbal abuse directed at them and their submissions by the bench during proceedings. All these developments erode the office's confidence in the administration of criminal justice.
[218] Ibid 46.
[219] S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409.
[220] Section 165 of the Constitution provides as follows:
(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.
[221] Kriegler J giving a judgment with which 9 others concurred. Sachs J concurred with the judgment and order but also gave a separate judgment.
[222] Addo, above n 18, 427.
[223] The first paragraph refers to the right to freedom of expression whereas the second relates the type of ‘formalities, conditions, restrictions or penalties’ to which the right may be subjected.
[224] Addo, above n 18
[225] Ibid 427 where he cites Article 31 of the Vienna Convention on the Law of Treaties as support for such an approach.
[226] Ibid. The cases on which he bases this view include Barford v Denmark (1991) 13 EHRR 493 and Prager and Oberschlick v Austria [1995] ECHR 12_2; (1994) 21 EHRR 1.
[227] See Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political rights: Cases, Materials, and Commentary (2000).
[228] Lange [1997] HCA 25; (1997) 189 CLR 520.
[229] Ibid.
[230] Adrienne Stone, 'Lange, Levy and the Direction of Freedom of Political Communication Under the Australian Constitution' [1998] UNSWLawJl 38; (1998) 21 University of New South Wales Law Journal 117-134.
[231] See comments of Kirby J in ABC v Lenah Game Meats.
[232] Lange, above n 5.
[233] Levy v The State of Victoria [1997] HCA 31; (1997) 146 ALR 248 as cited in ‘Media Law’ Sally Walker (year), 56.
[234] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545, [61].
[235] AG for NSW v X above n 91 citing : Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (New South Wales Court of Appeal, unreported, 15 September 1994) 4 (Gleeson CJ); Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540, especially 558-560 (Kirby P) and 570-571 (Handley JA); John Fairfax Publications Pty Limited v Doe (1995) 37 NSWLR 81, 109-111 (Kirby P); Theophanous v Herald & Weekly Times Limited [1994] HCA 46; (1993-1994) 182 CLR 104, 187 (Deane J) and Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 324-325 (Ipp J) and 343 (Anderson J).
[236] It can be argued that as the courts are an arm of government media reports of their processes are a government or political matter. See Felicity Robinson, above n 90 citing Chris Nash ‘Panel Discussion’ [1999] UTSLawRw 20; (1999) 1 University of Technology Sydney Law Review 159-160.
[237] Popovic v Herald and Weekly Times Limited 2002 VSC 174 (unreported).
[239] As was done via the Parliamentary Privileges Act 1987 (Cth).
[241] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545, [105] (Kirby J) .
[242] See Campbell and Groves, above n 1
[243] See words of Lord Denning, above n 31
[244] [1899] UKLawRpAC 33; [1899] A.C. 549 (at least in England and Wales if not in the ‘small colonies’)
[245] R v Gray [1900] UKLawRpKQB 63; (1900) 2 QB 36.
[246] See Pannick chapter 5 pages 105 to 139 for summaries of the circumstances of R v Vidah, The Times 18 November 1922; R v Freeman, The Times 18 November 1925; R v Editor of New Statesman; ex parte DPP 44 TLR 301 (1928); R v Wilkinson, The Times 16 July 1930; and R v Colsey, The Times 9 May 1931.
[247] Zahid Ebrahim, Matrix under Threat - A briefing paper on the offence of scandalising the court, Issues paper published by Article 19 The global campaign for free expression accessible via the web site <http://www.article19.org/> .
[248] See also the cases referred to by Sachs J in his judgment in S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409.