Hinch & Macquarie Broadcasting Holdings Ltd v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15 (2 December 1987)

CATCHWORDS

HEARING

DECISION

2. The critical passage is in these terms:



"It is of extreme public interest that no conduct

should be permitted which is likely to prevent a

litigant in a Court of justice from having his case

tried free from all matter of prejudice. But the

administration of justice, important though it

undoubtedly is, is not the only matter in which the

public is vitally interested; and if in the course

of the ventilation of a question of public concern

matter is published which may prejudice a party in

the conduct of a law suit, it does not follow that

a contempt has been committed. The case may be one

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.

prevented by process of contempt from continuing to

discuss publicly a matter which may fairly be

regarded as one of public interest, by reason

merely of the fact that the matter in question has

become the subject of litigation, or that a person

whose conduct is being publicly criticised has

become a party to litigation either as plaintiff or

as defendant, and whether in relation to the matter

which is under discussion or with respect to some

other matter ..."

3. The effect of these observations is central to the outcome of the appeals in the present case, the grant of special leave to appeal having been restricted to grounds which canvass the principles of the law of contempt as stated in Bread Manufacturers and Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 ("BLF"). The appeals arise out of a series of three radio broadcasts made by the first appellant, Mr Hinch, on a Melbourne radio station owned by the second appellant. The broadcasts related to one Michael Glennon against whom charges of child molestation had been laid. He was charged on 12 November 1985 on an information alleging nine counts of indecent assault, one count of buggery and two counts of assault with intent to commit buggery. The offences had been committed between 1 January 1975 and 30 June 1983 upon young male persons. He was remanded on bail to appear at the Melbourne Magistrates' Court on 8 April 1986.

4. Father Glennon, who had been ordained as a Catholic priest, occupied a position as the Governing Director of the Peaceful Hand Youth Foundation Pty. Limited (the "Foundation") an organization which conducted children's camps and other activities for children. On 13 November, the day following the day on which Father Glennon was charged, Mr Hinch made the first of the three radio broadcasts in which he drew attention to the fact that Father Glennon had been charged with offences against teenage boys. Mr Hinch prefaced his reference to this fact by saying:

"Now, I want to go back to a case - late yesterday

we learned about it - we learned of a Catholic

priest who allegedly used his clerical robes as a

bait for his flock."

5. On 15 November Mr Hinch made another broadcast in which he raised the matter once again, referring to the pending charges of molestation dating back to 1975 and disclosing that Father Glennon had pleaded not guilty to all the charges. He revealed that the Foundation's secretary had confirmed that Father Glennon would nevertheless remain as Governing Director. Mr Hinch then made the comment "That is, despite a jail sentence for indecent assault, the man will stay in that position." He again raised the question of how Father Glennon could continue to hold his senior office in the Foundation "after being jailed on an indecent assault charge".

6. On 17 February the Attorney-General filed a notice of motion alleging that the appellants had committed contempt. That motion was adjourned on the return date to 11 March 1986. On 7 March 1986 Father Glennon was charged with two counts of indecent assault of a female and one count of rape and was bailed to appear at the Melbourne Magistrates' Court on 8 April 1986. The offences were alleged to have been committed at Lancefield between 1 July 1982 and 30 November 1982.

7. On 11 March 1986 the first appellant made his third broadcast in which he again referred to Father Glennon's prior convictions and to the charge on two counts of rape involving a 12 year old boy on which Father Glennon had been acquitted. Mr Hinch referred to the latest charges against Father Glennon and concluded the broadcast by asking the question raised in the earlier broadcasts.

8. The thrust of this broadcast, like that of the earlier broadcasts, was, having regard to the nature of the pending charges of Father Glennon's past record, to highlight the danger to children inherent in Father Glennon continuing to occupy his position as Governing Director of the Foundation and to question how it was that he was permitted in the circumstances to continue in that position. It seems that Mr Hinch was and had been greatly concerned by the problems of child molestation.

9. The Attorney-General filed a second notice of motion alleging that the appellants were guilty of contempt arising out of the third broadcast. The motions were heard by Murphy J. who found the appellants guilty of contempt in relation to the three broadcasts. On the first motion his Honour imposed fines of $25,000 on both of the appellants. On the second motion his Honour imposed a sentence of imprisonment of 42 days on the first appellant and a fine of $30,000 on the second appellant. On appeal the Full Court of the Supreme Court of Victoria (Young C.J. and Kaye J., Nicholson J. dissenting) reduced Mr Hinch's sentence to 28 days and reduced the fines of $25,000 to the sum of $15,000 in each case.

10. The appellants submit that, in accordance with the approach adopted by Jordan C.J. in Bread Manufacturers, the question whether the appellants committed any contempt is to be determined by balancing the considerations affecting the public interest in freedom of discussion on the one hand and the public interest in protecting the administration of justice on the other and that, on a correct balancing of these considerations, the question must be answered in favour of the appellants. The appellants' case therefore calls for a close consideration of the judgment in Bread Manufacturers and of the subsequent development of the principle which it expresses.

11. For obvious reasons it is necessary to give close consideration to the fourth sentence in the passage which I have already quoted from the judgment of Jordan C.J. The question arises whether that sentence expresses a principle of law that governs references to pending criminal proceedings when such references form part of any discussion of public affairs or any denunciation of public abuses.

12. Although Bread Manufacturers concerns an alleged contempt in relation to civil proceedings, the principle expressed in the judgment applies to publications prejudicial to criminal proceedings as well. In John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, Dixon C.J., Fullagar, Kitto and Taylor JJ. (at p 372) proceeded on the footing that the principle applied to a publication in a newspaper relating to criminal charges pending in a court of petty sessions (see also: Registrar of the Court of Appeal v. Willesee (1985) 3 NSWLR 650, at pp 659, 677, 681). There is no acceptable basis in principle or theory for drawing a distinction between the rules of the law of contempt as they apply to civil and criminal proceedings. The law of contempt is concerned to reconcile the public interest in freedom of discussion and the provision of information which the public has a legitimate interest in knowing with the public interest in the integrity of the administration of justice, including the need to protect the fair trial of both criminal and civil proceedings, without drawing any distinction between the two, except in so far as it may be necessary to take account of their different characteristics in deciding whether a contempt has been committed or should be punished.

13. The present case then raises for consideration a fundamental question. How does the law of contempt approach the discussion of a topic of public concern or interest when in the course of that discussion the speaker or the author makes explicit reference to proceedings in which an individual has been charged with a criminal offence and that reference bears on the guilt or innocence of the accused or is capable of prejudicing him in his trial for that offence? Does the law balance the considerations relevant to the competing public interests, as the appellants submit it should? Does it apply a test or formula, such as that suggested in the fourth sentence of the passage quoted from the judgment of Jordan C.J.? Or does it apply a combination of these approaches?

14. It is evident from a reading of the passage quoted from Jordan C.J.'s judgment that the third sentence asserts that there will be some occasions when the public interest in the administration of justice may be required to yield to a superior public interest in freedom of discussion and the free flow of information. The fourth sentence then asserts that in such a case the publication does not amount to a contempt, even if it causes "some likelihood of prejudice to a person who happens at the time to be a litigant", so long as it causes that likelihood "as an incidental but not intended by-product" of the discussion of the topic of public concern or interest. This sentence, in the context in which it appears, is not so much a statement of principle as an example of a publication which has not crossed the borderline because, being a discussion of a matter of public concern or interest, it fortuitously causes an unintended risk of prejudice to a litigant. As later passages in the judgment indicate, the risk of prejudice will be fortuitous and unintended if the author or publisher is unaware of the particular litigation. The final sentence in the passage which I have quoted indicates that Jordan C.J. was speaking with particular reference to the continuation of a public discussion which had begun before the commencement of the relevant proceedings. His Honour was concerned to make the point that in such a case the public discussion may continue, without amounting to a contempt, notwithstanding that the issue in the litigation relates to the subject-matter of the discussion, so long as the possibility of prejudice to the litigation is a fortuitous and unintended by-product. In these circumstances the fourth sentence should not be regarded as a comprehensive principle applying to the discussion of any topic of public concern or interest, initiated when the relevant litigation is pending.

15. The judgments in BLF did not treat the fourth sentence as the expression of a governing principle to be applied whenever the publication is identified as one involving the discussion of public affairs or the denunciation of public abuses. The issue in BLF was whether the inquiry and report by the Royal Commissioner concerning the alleged illegal activities of a nation-wide union would interfere with civil proceedings for deregistration of the union. No member of the Court resolved the question solely by reference to a test of the kind stated in the fourth sentence. Although the judgments referred to it (see pp.59, 95, 133, 175), it was not regarded as a decisive criterion of the non-existence of contempt. Of course BLF did not lend itself to resolution by the application of such a test, there being no actual publication to which it could apply. Nonetheless the tenor of the judgments is inconsistent with the suggestion that Jordan C.J. was prescribing such a precise and far-reaching test. Although Gibbs C.J. and I applied a test, it was not the suggested test. Gibbs C.J. said (at p.60) that:

"... the court (must) be satisfied that there is a

real risk that the material alleged to be a

contempt will interfere with the administration of

justice in pending proceedings before it can hold

that a contempt has been committed or threatened".

16. In BLF the members of the Court acknowledged that it was necessary to balance the competing public interests in freedom of expression and fair trial. However, there was disagreement about what was involved in the balancing process. Stephen J. (at p.75), Wilson J. (at pp.133-134), Brennan J. (at p.177) and I (at p.95), adopting the approach taken by Deane J. (with whom Bowen C.J. and Evatt J. agreed) in the Full Court of the Federal Court [1981] FCA 163; (1981) 53 FLR 396, at p.403; [1981] FCA 163; 37 ALR 470, at pp.475-476, considered that it was necessary to balance the various considerations reflecting the competing public interests in those cases in which there is no intention to interfere with the administration of justice. Gibbs C.J. (at p.60) thought that the Court balanced the competing interests in formulating the principle to be applied and I considered (at pp.98-99) that the case was ultimately to be resolved by applying the test mentioned above.

17. In passing I should mention that in BLF Brennan J. (at pp.169, 175-176) drew a distinction between a technical contempt and one which moved the court to action. This led his Honour to the view that the balancing of the two public interests takes place when the court decides whether to punish a contempt. Gibbs C.J. (at p.60) also distinguished between a contempt and a contempt that merited punishment. Although the other members of the Court did not explicitly discuss the distinction between a technical contempt and a punishable contempt, Stephen J. (at pp.74-75), Wilson J. (at pp.133-137) and I (at pp.95-96, 98) dealt with the matter on the footing that the balancing of the two public interests takes place at the stage when the court decides whether a contempt has been committed. It is unnecessary to resolve the question in the present case.

18. It was suggested that the balancing approach view was confirmed in Waterhouse v. Australian Broadcasting Corporation [1986] HCA 64; (1986) 61 ALJR 24; 68 ALR 75. There Gibbs C.J., Wilson and Dawson JJ., when refusing special leave to appeal against the refusal of an application to restrain the telecast of a programme said to interfere with the fair trial of one plaintiff and civil proceedings involving the other plaintiff, stated that the primary judge was required to make a discretionary judgment "balancing two principles of great importance". Although the comment on its face seems to support the balancing approach, I am not inclined to give much significance to it. It was an ex tempore comment made in the course of refusing an application for special leave to appeal.

19. In Attorney-General v. Times Newspapers Ltd. (1974) AC 273, Lord Reid and Lord Simon of Glaisdale cited with approval the Bread Manufacturers' principle (see pp 296-297, 319) in support of the statement that there must be a balancing of considerations. Lord Reid quoted the Bread Manufacturers judgment immediately after saying (at p.296):

"There must be absolute prohibition of interference

with a fair trial but beyond that there must be a

balancing of relevant considerations."

20. Despite this statement there are examples of circumstances in which on a balancing approach the public interest in the administration of justice would necessarily give way to the public interest in freedom of discussion of an important topic. So Wilson J. in BLF (at p.132) instanced a fair and accurate report of court proceedings made in good faith. And McHugh J.A. in Attorney-General for New South Wales v. John Fairfax & Sons Ltd. and Bacon (1986) 6 NSWLR 695, at p 714 mentioned a fair and accurate report of proceedings in Parliament made in good faith.

21. It has never been suggested that a fair and accurate report of committal proceedings made in good faith would amount to a contempt, notwithstanding daily reports in the news media of elements in a Crown case which might have a strong tendency to induce readers and viewers to conclude that the accused is guilty of the offence charged. A report of committal proceedings has a special capacity to influence the minds of potential jurors because the evidence is directed to the very issues which will arise at the trial and the evidence led may include evidence not admissible at the subsequent trial. On the other hand a fair and accurate report will necessarily be confined to a summary of evidence and submissions based on the evidence. Nevertheless it would be a mistake to draw too much from the fact that reports of committal proceedings do not constitute contempt because these reports give effect to another public policy, namely that such proceedings should be reported. Indeed, it is argued in favour of the public reporting of committal proceedings that publicity dispels inaccurate rumour and speculation and may induce citizens who are able to give relevant evidence to come forward. The Australian Law Reform Commission has recently questioned the absoluteness of this policy and has recently recommended that committing magistrates should have a power to make suppression orders (Australian Law Reform Commission, Report No. 35, Contempt (1987)).

22. Be this as it may, the reporting of committal proceedings is an example of the reporting of public affairs, notwithstanding that the publication of the report may cause prejudice to the accused at his trial by prejudicing the minds of potential jurors in relation to the issues to be determined at the trial. Reports of court proceedings are not a true example of the public interest in the administration of justice yielding to the public interest in freedom of discussion. Rather it is a case where on balance the wider interests of the administration of justice are thought, as the law currently stands, to be better served by allowing publicity. In passing I should mention that reports of committal proceedings do not come within the conception of "interference with the fair trial" of which Lord Reid was speaking in Times Newspapers (at p.296). His Lordship was referring to instances of direct interference with a fair trial, where the interference is almost certainly intended.

23. No doubt there will be other occasions, apart from reports of the proceedings of Parliament and the continuation of discussion of a matter of public interest commenced before the institution of proceedings, when the balancing approach requires that the public interest in the administration of justice should give way to the public interest in freedom of discussion. The discussion of a major constitutional crisis or of an imminent threat of nuclear disaster are illustrations with overriding claims which immediately leap to mind. But this concession is a fragile foundation for the conclusion that once any topic of public concern or interest is identified, the public interest in the administration of justice must give way to discussion of that topic, provided that the likelihood of prejudice to pending litigation is no more than unintended and incidental to the discussion of the topic of public concern or interest.

24. The question whether a person, like Father Glennon, against whom charges of child molestation are pending, should be permitted to retain a responsible position in charge of children is a matter of high public importance. Yet its importance is not so fundamental and paramount as to entail a disregard of the essentials of a fair trial. No doubt Father Glennon's prior convictions for similar offences reinforced the case for suspending him from his office with the Foundation and made his continuation in office the more reprehensible. But the public interest in free discussion and in alerting the community to the risk inherent in that continuation does not warrant a desertion of the public interest in securing a fair trial for Father Glennon. The public interest in free discussion and in alerting the community to the risk does not require disclosure of prior convictions with the prejudice that it is likely to cause to a fair trial.

25. Where the topic of public discussion is removed from, or far more comprehensive in its reach than, the subject-matter of the litigation the risk of prejudice to the litigation arising from the publication is generally slight. Reference to the litigation which is merely incidental to the discussion is unlikely to occasion a substantial risk of prejudice. But where the topic of public discussion is closely related to the subject-matter of the litigation the risk of prejudice may very well be substantial. Take, for example, public discussion or denunciation of incompetence and manipulation by the police in their investigation of a serious crime. Ventilation of the alleged abuse which was incidental, though central, to the discussion might entail detailed references to the evidence in advance of the trial of an accused person. This might occasion very serious prejudice to the Crown or to the accused. Obviously, a balance between free press and fair trial would require that the public discussion be suspended until completion of the trial.

26. Where the public interest in the administration of justice does not yield to a superior public interest, the balancing approach should protect the administration of justice from any substantial risk of serious interference. The application of a test in this form would best reconcile the conflicting demands for a free press and for a fair trial (see BLF, at p.99). In this formulation the adjective "serious" is essentially emphatic, so that I would be prepared to accept the test of "real risk" of interference stated by Gibbs C.J. (at p.60). To my way of thinking such a test balances more appropriately the competing considerations than a principle which speaks of a publication having a tendency to prejudice a fair trial (see McRae, at p.371) or a publication which is calculated to prejudice a fair trial (Davis v. Baillie [1946] VicLawRp 76; (1946) VLR 486, at p 494). These tests are open to criticism on the ground that they may be uncertain and may tend to give too much weight to the protection of the administration of justice at the expense of freedom of discussion (see Australian Law Reform Commission, Discussion Paper No. 26, Contempt and the Media, (1986) pars.52 and 53; Report No. 35, Contempt, pars.288 et seq.). So much was implicitly recognized in McRae where Dixon C.J., Fullagar, Kitto and Taylor JJ. emphasized (at p.370) that the summary jurisdiction to punish contempt should be exercised:

"... only if it is made quite clear to the court

that the matter published has, as a matter of

practical reality, a tendency to interfere with the

due course of justice in a particular case".

27. In assessing whether a particular publication presents a real risk of serious prejudice to a fair trial, that is, serious injustice, it is necessary to ascertain whether the references to the subject-matter of the litigation are central or merely incidental to the topic of public discussion. If the references to an issue in the litigation are central to the discussion the likelihood of prejudice or serious prejudice is all the stronger. If, however, the references to the litigation are merely incidental, in the majority of cases there is unlikely to be a real risk of prejudice to the litigation.

28. Whether a particular publication amounts to a contempt in the sense just discussed depends upon a number of factors. They include the nature and the extent of the publication, the mode of trial (whether by judge or jury) and the time which will elapse between publication and trial. The significance of these matters has been examined in the decided cases so that they need no elaboration. However, I should mention some aspects which are relevant to the present appeals. The first is that the courts have always taken a serious view of any published disclosure of the prior conviction of a person accused of a criminal offence when proceedings for that offence are pending. This is because a prior conviction is not admissible evidence of a person's guilt of the offence with which he is charged: Maxwell v. The Director of Public Prosecutions (1935) AC 309, at p 317; Davis v. Baillie, at p 496; Attorney-General (N.S.W.) v. Willesee (1980) 2 NSWLR 143, at p 149. Yet knowledge of a prior conviction is likely to prejudice a jury against an accused person and induce a jury to conclude that he had a propensity to commit the offence charged. For this reason the acquisition by a jury of knowledge of a prior conviction of the accused is usually regarded as causing such prejudice that the trial is invalidated thereafter: Willesee, at p.149.

29. In the present case Mr Hinch in each of his three broadcasts made reference in a dramatic way to the fact that Father Glennon had been convicted in 1978 of indecent assault for which he had received a prison sentence. The impact of this disclosure gained added force from the circumstances that in the broadcasts it was associated with the statement that Father Glennon had been recently charged with the twelve current offences of child molestation, said to have been committed between 1975 and 1982. And in the first and third broadcasts there was the additional reference to the charges of rape in 1984 on which Father Glennon was acquitted. The disclosure of the prior conviction was in this context strongly suggestive of Father Glennon's guilt of the current offences charged or some of them at least. The broadcasts expressed in colourful language were likely to evoke the response "where there is smoke, there is fire".

30. The second comment relates to the appellants' challenge to the comment of Young C.J. that Mr Hinch could have made his point effectively without referring to Father Glennon's prior convictions. The submission, based on the remark of Lord Diplock in Attorney-General v. English (1983) 1 AC 116, at p 143, is that it is not for the court to take into account the question whether the publication might have been expressed as effectively in a different form. My response to this submission is that Lord Diplock was stating that the test under s.5 of the Contempt of Court Act 1981 (U.K.) is whether the risk of prejudice is "merely incidental to the discussion" and that this test does not accurately reflect the common law in Australia.

31. Although s.5 echoes in some respects the fourth sentence in the passage quoted from Jordan C.J.'s judgment in Bread Manufacturers, the section has a different operation. It specifically refers to "the risk of impediment or prejudice to particular legal proceedings" and, subject to the qualification mentioned in the section, it protects the publication if that risk is "merely incidental to the discussion". Jordan C.J. had merely referred to the possibility, or some likelihood, of prejudice, without relating it to particular legal proceedings and he had referred to the risk as "an incidental but not intended by-product", not as being incidental to the discussion. Although it has been suggested that s.5 merely gives effect to the antecedent common law (see Attorney-General v. News Group Newspapers Ltd. (1987) 1 QB 1, at p 13), I do not consider that, as it has been interpreted, it should be regarded as reflecting the common law in Australia.

32. Appropriate as Lord Diplock's approach may be to s.5 of the United Kingdom statute, there is no place for that approach when an Australian court is called upon to decide whether a particular publication presents a substantial risk of serious interference with a fair trial. Our courts have consistently had regard to the fairness or the unfairness of the statements and comments published in deciding whether there has been a contempt or punishable contempt. The judgment of Fullagar J. in Davis v. Baillie (at pp 494-497) is instructive. There his Honour concluded that two of the articles in question went beyond "what is proper or legitimate" (at p.495) because the language used suggested that the accused had committed offences of robbery under arms and housebreaking, as well as the offences on which his trial was then pending. But his Honour acknowledged that the press were entitled to describe fully the pursuit and arrest of the accused and the circumstances leading up to and accompanying the pursuit, including housebreakings which occurred in that pursuit "and to display such news as prominently and with such appropriate headlines as editorial staffs thought fit" (p.495).

33. In the light of the foregoing examination of the law of contempt I turn now to consider the finding made by the Full Court of the Supreme Court that the three broadcasts made by Mr Hinch constituted contempt or punishable contempts. The primary judge found that each broadcast had a real and appreciable tendency from a practical point of view to prejudice listeners against Father Glennon and to influence his forthcoming committal proceedings and trial in a manner adverse to him. In expressing his finding as he did, the primary judge applied the principles as stated in McRae (at pp.370, 372). In the Full Court Kaye J. accepted that the principles were correctly stated in McRae. Young C.J. applied the test as stated by Gibbs C.J. in BLF (at pp.56, 60) which he rightly regarded as consistent with McRae and supported by the comments made in BLF by Brennan J. (at p.166) and myself (at p.99).

34. The primary judge found that the three broadcasts had an audience of 200,000 listeners, of whom approximately 100,000 were in the Melbourne area from which the jurors at Father Glennon's trial would be drawn. The primary judge went on to find:

"In my opinion the broadcasts, and each of them,

would have influenced most listeners to conclude

that Glennon was a despicable man, a dissembling

priest, who corrupted young people after using his

pseudo-clerical position to gain their trust.

A strong feeling of hostility towards Glennon

must, in my opinion, have been created. Reference

is made ... to his prior conviction and gaoling, to

his prior acquittals on similar charges, and to at

least the possibility that many other offences had

been committed but never seen the light of day ..."

"... such statements concerning a Catholic priest

in Victoria will be likely to make a lasting

impression upon the minds of those listening to the

broadcasts, who are ordinary reasonable members of

the community, and perhaps especially upon the

minds of those with strong religious beliefs,

whether of Catholic or of some other persuasion ...

Even if the detail of Glennon's prior criminal

history as stated or as insidiously insinuated, was

not remembered by Mr. Hinch's 100,000 listeners in

the metropolitan area, of whom a large number would

be potential jurors at his trial, yet in my view

the poisonous effect of the message would be very

likely to remain ready to be re-livened or

re-awakened when evidence at his trial is led."

35. I agree with the central thrust of the passages which I have just quoted. There were repeated disclosures of Mr Glennon's prior convictions in a context which unquestionably suggested that he was a sexual predator on children committed to his care. The long list of pending charges, together with the references to charges on which he had been acquitted, would be likely to arouse strong prejudice against him. The suggestion that a person is a child molester inspires in many people a strong feeling of revulsion towards him, particularly when he is a priest who is entrusted with the care of children and the innuendo is, as it clearly was, that he took advantage of that position to gratify his sexual desires.

36. This being so, the primary judge and the majority in the Full Court were fully entitled to reach the clear conviction that the broadcasts constituted a substantial risk of serious interference with the fairness of the trial. It has been said that a broadcast may have a transient impact only on the mind of the listener and that this effect is the more likely as the mind of the listener is continuously bombarded with a never-ending kaleidoscope of sensational and scandalous items of news so that the individual's recollection of each and every item is ephemeral. See BLF (at p 136); Duff v. The Queen [1979] FCA 83; (1979) 39 FLR 315, at p 333; [1979] FCA 83; 28 ALR 663, at p 677; Attorney-General for New South Wales v. John Fairfax & Sons Pty. Ltd., per McHugh J.A.. Nonetheless, in the light of what I have already said, the strong likelihood is that any juror at Mr Glennon's trial who heard one of the broadcasts would be likely to have a recollection of the substance of it and have a prejudice against him. Even if the atmosphere and the discipline of the trial might tend to concentrate the juror's mind on the determination of the real issues, recollection of the broadcast would pre-dispose the juror to arrive at conclusions unfavourable to the accused. True it is that Young C.J. accepted that the trial might not take place before the expiration of 18 months after Murphy J. dealt with the contempt motions on 22 May 1986, that is two years after the first two broadcasts. Nonetheless the Full Court was fully entitled to conclude that the lapse of time would not eliminate the substantial risk of serious prejudice. Delay is, of course, an important factor to be taken into account in deciding what is the risk of prejudice to a fair trial. The relevance of delay is that it naturally tends to erode the recollection of the listener, the viewer and the reader.

37. For the foregoing reasons the majority in the Full Court was correct in affirming the primary judge's findings that the appellants had committed contempts in the making of the broadcasts and that such findings were justified according to the criminal standard of proof.

38. Like Wilson and Toohey JJ., I consider that the affidavit evidence rejected by the primary judge would not have affected the outcome had it been admitted.

39. I would dismiss the appeals.

WILSON J. The detailed description in the reasons for judgment prepared by Toohey J. of the circumstances surrounding these matters relieves me of any necessity to repeat that history in the same detail. The facts that are immediately relevant may be shortly stated. On 12 November 1985 Michael Glennon appeared in the Preston Magistrates' Court in Victoria charged with twelve sexual offences involving teenage boys. He was released on bail. On 13 November Mr Hinch made the first of the broadcasts the subject of these proceedings. The theme of the broadcasts was specifically related to Mr Glennon and it was this: how can a priest, a non-denominational priest, Father Michael Glennon, continue to hold senior office in a children's youth organization after being gaoled on an indecent assault charge?

2. The substance of the first broadcast was repeated on 15 November 1985. In February 1986 the Attorney-General instituted proceedings against each of the appellants in the Supreme Court of Victoria seeking their conviction and punishment for contempt of court. The notice of motion alleged that the two broadcasts to which I have referred were likely or calculated or had the tendency to prejudice the fair trial of Michael Glennon and to prejudice the due administration of justice. By arrangement, the notice was served on the solicitors for the appellants on 17 February 1986 and was returnable on 19 February. After various adjournments it was ultimately heard in April.

3. In the meantime the committal proceedings with respect to the charges pending against Mr Glennon were arranged for 8 April 1986. Then on 7 March 1986 Mr Glennon was charged with three further offences, one of rape and two of indecent assault on a female. He was released on bail to appear in the Melbourne Magistrates' Court on 8 April 1986. On 11 March 1986 Mr Hinch made a further broadcast in which he repeated the substance of the earlier broadcasts coupled with a statement concerning the further charges. This broadcast formed the basis of a second notice of motion by the Attorney-General issued on 19 March 1986.

4. A verbatim transcript of each of the three broadcasts is set out in an appendix to the reasons for judgment of Toohey J. It is unnecessary to repeat them.

5. The hearing of the Attorney-General's motions proceeded before Murphy J. in April 1986. On 28 May 1986, his Honour, having found both charges proved, imposed on each appellant a fine of $25,000 on the first charge. On the second charge, Mr Hinch was sentenced to imprisonment for six weeks and Macquarie Broadcasting Holdings Limited was fined the sum of $30,000. On appeal to the Full Court, the Court, by majority (Young C.J. and Kaye J., Nicholson J. dissenting), dismissed the appeals against conviction of each appellant in each case but varied the sentences imposed by Murphy J. In the case of the first motion, the fine imposed on each appellant was reduced from $25,000 to $15,000. In the case of the second motion, the sentence of imprisonment imposed upon Mr Hinch was reduced to 28 days and the fine imposed on Macquarie Broadcasting Holdings Limited was reduced to $25,000. Nicholson J. dissented, primarily because he was not satisfied that the broadcasts in question had the necessary tendency to interfere with a fair trial of Mr Glennon.

6. On 13 February 1987 each appellant was granted special leave to appeal from the decision of the Full Court. However, the grant of leave was expressly restricted in important respects, namely that

"such appeal be restricted to the effect of the

observations of Chief Justice Jordan in Ex-parte

Bread Manufacturers Ltd.; Re Truth & Sportsman

Limited and Another (1937) 37 SR NSW 242 and the

views expressed by the members of this Court in

Victoria v. Building Construction Employees' and

Builders Labourers' Federation [1982] HCA 31; 152 CLR 25 and to

exclude any matter relating to:

(a) the question of penalties; and

(b) any argument based on the proposition that the

Full Court of the Supreme Court should have

applied the practice which is observed in New

South Wales, in deferring the hearing of

contempt motions until after the determination

of the criminal trial".

7. There is no doubt as to the basic circumstance upon which the jurisdiction of a superior court to punish for contempt of court is founded. It is a jurisdiction to be exercised with caution and only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice. The impugned material must exhibit a real and definite tendency to prejudice or embarrass pending proceedings. See John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at pp 370, 372; Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 ("the BLF Case"), at pp.56, 99, 166. It is obvious that the weight and importance of the various factors that will be material to a consideration of that question will vary from case to case. Broadly speaking, however, the more important factors will include the following: the content of the publication; the nature of the proceedings liable to be affected, whether they are civil or criminal proceedings and whether at the time of publication they are pending at the committal, trial or appellate stage; the persons to whom the publication is addressed; and finally, the likely durability of the influence of the publication on its audience. The last-mentioned factor will assume greater or lesser relevance depending on when the pending proceedings are likely to be heard. If a hearing is imminent, then it is unlikely that the prejudicial publication will have passed from the memory of those who may have been affected by it. On the other hand, the prejudicial tendency of a radio broadcast may be found to be diminished by reason of the fact that the relevant proceedings are not to be heard for many months. This is a question of fact. Cf. Attorney-General v. News Group Newspapers Ltd. (1987) 1 QB 1. An impugned broadcast may be so sensational in its content as to remain in the memory for a very long time and in such a case the likely time of trial will not prove to be a significant factor.

8. As a result of the limited right of appeal, it was not open to the appellants to challenge the finding in the courts below that the broadcasts had the requisite tendency to prejudice the fair trial of Mr Glennon. Nevertheless, in order to understand the issues that are raised by the appeals it is necessary to set out the substance of the findings of Murphy J., as confirmed by the majority in the Full Court, with respect to the tendency of the broadcasts. Those findings were as follows:

"In my opinion the broadcasts, and each of

them, would have influenced most listeners to

conclude that Glennon was a despicable man, a

dissembling priest, who corrupted young people

after using his pseudo-clerical position to gain

their trust.

A strong feeling of hostility towards Glennon

must, in my opinion, have been created. Reference

is made ... to his prior conviction and gaoling, to

his prior acquittals on similar charges, and to at

least the possibility that many other offences had

been committed but never seen the light of day and

it might be implied that such offences perhaps

could involve Aboriginal children.

These statements were all extremely

prejudicial and improper and unfair considerations

to put before witnesses and potential jurors....

...

I think that it is also likely that witnesses

wavering in their resolution as to any value

judgment that they might have to make concerning

the facts, or entertaining any doubts as to his or

her testimony, would be stiffened and fortified

adversely to Glennon by the knowledge of the facts

of his prior criminal history as stated by

Mr. Hinch. They would be far more likely to jump

to conclusions."

"I am of the opinion that such statements

concerning a Catholic priest in Victoria will be

likely to make a lasting impression upon the minds

of those listening to the broadcasts, who are

ordinary reasonable members of the community, and

perhaps especially upon the minds of those with

strong religious beliefs, whether of Catholic or of

some other persuasion. Again, they would be

especially likely to impress themselves on the

minds of parents with children, or grandchildren,

who are yet to run the gauntlet of growing up in

modern teenage society.

Even if the detail of Glennon's prior criminal

history as stated or as insidiously insinuated, was

not remembered by Mr. Hinch's 100,000 listeners in

the metropolitan area, of whom a large number would

be potential jurors at his trial, yet in my view

the poisonous effect of the message would be very

likely to remain ready to be re-livened or

re-awakened when evidence at his trial is led."

9. The present appeals require the Court to consider the effect of the observations of Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242. The case concerned civil proceedings. The respondents had published a series of articles dealing with a matter of public interest, namely the organization of the bread trade and the selling price of bread, and critical of the applicant company's activities. Certain of the articles were published after the commencement of an action of libel and conspiracy in which the applicant company was the defendant. The respondents had no knowledge of the existence of the proceedings. A motion to attach the respondents for contempt was dismissed. Jordan C.J. said, at pp.249-250:

"It is of extreme public interest that no

conduct should be permitted which is likely to

prevent a litigant in a Court of justice from

having his case tried free from all matter of

prejudice. But the administration of justice,

important though it undoubtedly is, is not the only

matter in which the public is vitally interested;

and if in the course of the ventilation of a

question of public concern matter is published

which may prejudice a party in the conduct of a law

suit, it does not follow that a contempt has been

committed. The case may be one 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.

It is well settled that a person cannot be

prevented by process of contempt from continuing to

discuss publicly a matter which may fairly be

regarded as one of public interest, by reason

merely of the fact that the matter in question has

become the subject of litigation, or that a person

whose conduct is being publicly criticised has

become a party to litigation either as plaintiff or

as defendant, and whether in relation to the matter

which is under discussion or with respect to some

other matter...."

10. In my opinion the first question should be answered in the affirmative, as it was by the Court of Appeal of the Supreme Court of New South Wales in Registrar of the Court of Appeal v. Willesee (1985) 3 NSWLR 650. There is no material distinction between civil and criminal proceedings which would exclude from consideration in a prosecution for contempt of court in relation to criminal proceedings a defence that the prejudicial material was published in the course of a bona fide discussion of a matter of public interest and was no more than an incidental but not intended by-product of that discussion. (I use the word "defence" for convenience, without implying that any ultimate onus of proof rests upon the person charged.) Criminal proceedings can give rise to the same problem of competing public interests as that to which Jordan C.J. refers, and it is the business of the law to reconcile so far as possible those competing interests. Of course, the public interest in the due administration of criminal justice is of a different kind to that involved in civil proceedings. Not only has the community a more direct stake in the former class of proceedings but juries are less likely to be involved in the latter. It follows that the public interest in ensuring that criminal proceedings are conducted free of prejudice will ordinarily attract great weight and make it less likely that the public interest in the freedom of discussion of matters of public importance will outweigh it. It will be recognized, too, that the nature of the prejudice which an offending publication may present to pending proceedings may vary enormously with the content of the publication. The greater the prejudice the less likely is it that its publication will be excused by its presence in the context of a discussion of a matter of public interest, however important. For example, in relation to the pending trial of a public officer charged with bribery, there may be a world of difference between the effect thereon of, on the one hand, a series of articles devoted to a general discussion of suspected improprieties in an area of public administration (but which articles do not name any particular officer), and, on the other hand, a publication which in the course of the same discussion names the officer and details his criminal history: cf. John Fairfax & Sons Pty. Ltd. v. McRae. There can be few disclosures more damaging to a person awaiting trial on a criminal charge than to have his prior convictions made known to the constituency from which the witnesses and jurors involved in his trial may come. It is one of the most "deeply rooted and jealously guarded principles" of the criminal law that evidence of prior convictions shall not be admissible on the trial of a person's guilt or innocence of a criminal charge: Maxwell v. The Director of Public Prosecutions (1935) AC 309, at p 317.

11. I now turn to the second question: how is the Bread Manufacturers principle to be applied? There has been some doubt about that question expressed in recent decisions of the Court of Appeal of the Supreme Court of New South Wales. In Willesee, at pp.682-683, Priestley J.A. distinguished a balancing approach from an approach which required asking whether or not the prejudicial publication was no more than an incidental but not intended by-product of a discussion of a matter of public concern. The latter approach was described as a normative approach, not requiring any balancing exercise but simply a finding on the facts. See also Attorney-General for New South Wales v. John Fairfax & Sons Ltd. and Bacon (1985) 6 NSWLR 695, per McHugh J.A. at p 715. However, in Director of Public Prosecutions v. Wran (1986) 7 NSWLR 616 the Court of Appeal (in a joint judgment of Street C.J., Hope, Glass, Samuels and Priestley JJ.A.) summed the matter up as follows:

"Stemming from the well-known statement by

Jordan C.J. in Ex parte Bread Manufacturers

Limited; Re Truth & Sportsman Limited (1937) 37 SR

(NSW) 242 at 249, it has been established by a

succession of decisions that in appropriate cases

the public interest in the administration of

justice may yield to public interest in the

ventilation of questions of public concern. The

boundaries of this principle have not been and

probably will never be defined with precision but

it is clear at least that publications directed to

the very issue to be decided at a criminal trial,

the guilt or innocence of the accused person, could

rarely if ever fall within this category:

Registrar Court of Appeal v. Willesee (1985) 3

NSWLR 650."

12. The order granting special leave to appeal refers to the views expressed by members of this Court in the BLF Case. The circumstances which gave rise to the BLF Case are not material, save to mention that it did not involve any allegation that a contempt of court had been committed. The allegation was of an anticipatory kind, namely, that if a royal commission was permitted to continue its inquiry in public its proceedings would constitute a contempt of court because the publicity attending them would interfere with proceedings then pending in the Federal Court seeking the cancellation of the registration of an organization under the Conciliation and Arbitration Act 1904 (Cth). In the course of his reasons for judgment, Gibbs C.J. said, at p.56:

"The law as to contempts of court of the kind now

under consideration reflects two conflicting

principles of public policy: on the one hand, the

need to safeguard the proper administration of

justice and on the other the protection of freedom

of speech (and this principle must extend to

freedom of inquiry). This question has recently

been discussed in Attorney-General v. Times

Newspapers Ltd. (1974) AC 273, although similar

views had earlier been expressed in New South

Wales: Ex parte Bread Manufacturers Ltd.; Re Truth

and Sportsman Ltd. (1937) 37 SR (NSW) 242, at

pp 249-250; Ex parte Dawson; Re Consolidated Press

(1961) SR (NSW) 573, at p 575. The law

strikes a balance; in the interest of the due

administration of justice it will curb freedom of

speech, but only to the extent that is necessary to

prevent a real prejudice to the administration of

justice."

"The conclusion reached by the Federal Court

was that the adverse effect of the continued public

proceedings of the royal commissions upon the

judicial proceedings in that court outweighed the

public interest involved in having the proceedings

of the Commissions continued in public. If their

Honours considered that they had a discretion to

weigh one consideration against another, and to

make a discretionary judgment as to whether a

contempt had been committed or was likely to be

committed, they were mistaken. The balancing of

interests which is mentioned in Attorney-General v.

Times Newspapers Ltd. (1974) A.C. 273, at pp.294,

296, 301, 319 is done by the law in formulating the

principle to be applied, and not by the Court in

deciding a particular case. The resulting

principle requires that the court be satisfied that

there is a real risk that the material alleged to

be a contempt will interfere with the

administration of justice in pending proceedings

before it can hold that a contempt has been

committed or is threatened. The discretion of the

court lies in dealing with a contempt, not in

deciding whether a contempt has been committed."

"His Honour then referred to the tension

existing between two distinct public interests, to

each of which the law must pay regard: the fair

and proper administration of justice and the

preservation of open discussion and free access to

information. It can, I think, be said that

generally these two complement each other: a fair

and proper administration of justice provides the

only available safeguard of the citizen when

freedom of speech is unlawfully denied; and it is

only in an open society, where freedom of scrutiny

and expression prevails, that justice is likely

routinely to be fairly administered. But despite

this happy conjunction, individual cases of

apparent conflict between these two interests may

arise readily enough. They do so in the present

case, and his Honour resolved the resultant

conflict substantially, but not exclusively, in

favour of the fair and proper administration of

justice when he enjoined further public hearings of

the Commission. He did so only after clearly

identifying and carefully evaluating the two

important public interests which were involved."

"The Federal Court rightly recognized that

where there is no intent to interfere with the

administration of justice the court must weigh up

the competing public interests, viz. the public

interest in the litigant having his case tried free

from all matter of prejudice and the public

interest in the exposure of public abuses, the

dissemination of information of public importance

and in freedom of discussion on these matters.

Deane J. [1981] FCA 163; (1981) 53 FLR 396, at p.403; [1981] FCA 163; 37 ALR

470, at p.476 quoted the well-known comments of

Jordan C.J. in Ex parte Bread Manufacturers Ltd.;

Re Truth and Sportsman Ltd. (1937) 37 SR (NSW)

242, at p 249, cited with approval by Lord Reid in

Attorney-General v. Times Newspapers Ltd. (1974)

AC 273, at pp 296-297."

"The necessity of weighing up on the one hand

the public interest in preserving the purity of the

stream of justice and on the other the public

interest in preserving freedom of speech and debate

on matters of public concern was recognized by

Deane J. and emphasized by his citation of a

well-known passage from the judgment of Jordan C.J.

in Ex parte Bread Manufacturers Ltd. (1937) 37 SR

(NSW) 242, at pp 249-250..."

"There is a distinction between a technical

contempt and a contempt which moves the court to

action, either to enjoin a threatened contempt or

the continuance of a contempt or to punish a

contempt. There are, as Lord Reid said in the

Times Newspapers Case (1974) A.C. 273, at p.298,

two questions: '... first, was there any contempt

at all, and secondly, was it sufficiently serious

to require, or justify the court in making, an

order against the respondent?' In answering the

second question, there are at least three factors

of importance to take into account. The first is

the public interest which may be served by

permitting the impugned conduct to occur or to

continue. In his judgment in Ex parte Bread

Manufacturers Ltd.; Re Truth and Sportsman Ltd.,

(1937) 37 SR (NSW) 242, Jordan C.J.

acknowledged the balance which may have to be

struck between the public interest to be served in

preventing interference with the due course of

justice and the public interest to be served by

permitting public discussion of matters of public

interest."

13. Mention should also be made of an ex tempore statement made by Gibbs C.J., Wilson and Dawson JJ. when refusing special leave to appeal in Waterhouse v. Australian Broadcasting Corporation [1986] HCA 64; (1986) 61 ALJR 24; 68 ALR 75. The Court prefaced its decision by saying that the primary judge

"was required to exercise a discretionary judgment,

balancing two principles of great importance - on

the one hand, the need to ensure that an accused

person should not be prejudiced in his trial, and

on the other hand, the need to ensure that the

public discussion of matters of public concern is

not stifled."

14. As I have said, the issue which requires determination in these appeals is whether a publication which prima facie would constitute a contempt of court deserving of punishment will escape that categorization if the court concludes that the damage to the public interest in the due administration of justice that is threatened or occasioned by the publication is outweighed by the public interest in the public ventilation and discussion of a matter of public concern. I have deliberately stated the issue in terms of a prima facie contempt deserving of punishment because, in my opinion, it goes to the heart of the problem and renders unnecessary a detailed discussion concerning the distinctions which might be drawn between the statements made by different members of the Court in the BLF Case. This approach accommodates the position taken by Stephen, Mason and Wilson JJ. with the distinction drawn by Brennan J. between a technical contempt and a contempt deserving of punishment (cf. Bacon, per McHugh J.A., at p.708), and it allows emphasis to be given to the place accorded by Gibbs C.J. to the discretion of the court when dealing with a contempt.

15. So stated, I think that on the authority of the BLF Case the issue can be resolved with some confidence. In an appropriate case the court is empowered to entertain a defence of discussion of a matter of public interest and in doing so to engage in a balancing exercise to determine which of the competing matters of public interest should prevail.

16. But it is important to emphasize that in undertaking a balancing exercise the court does not start with the scales evenly balanced. The law has already tilted the scales. In the interest of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real and substantial prejudice to the administration of justice: BLF Case, per Gibbs C.J. at p.56. In Bread Manufacturers Jordan C.J. was prepared to excuse a publication likely to prejudice a person who happened at the time to be a litigant if it is occasioned "as an incidental but not intended by-product" of a discussion of public affairs. Counsel for Mr Hinch urged the Court to disregard that qualification as forming no part of the statement of principle and explained it as germane merely to the facts of the particular case. I can see no warrant for doing so. The phrase was emphasized by Mason J. in the BLF Case, at p.95, when citing the statement of Jordan C.J. (and also indirectly by Lord Simon of Glaisdale in Attorney-General v. Times Newspapers Ltd. (1974) AC 273, at p 321). See, also, Borrie and Lowe's Law of Contempt, 2nd ed. (1983), pp 116-117. In my opinion, the qualification forms an integral and important part of the principle enunciated by the Chief Justice. I favour its characterization as one of the factors to which regard may be had in carrying out a balancing exercise rather than its adoption as a rigid criterion the presence of which would automatically lead to a conclusion. One cannot rule out the possibility that an incidental and not intended by-product of a discussion of a matter of general concern may nevertheless exhibit so strong a tendency to prejudice pending criminal proceedings as to warrant punishment for contempt. Conversely, the fact that a publication cannot be excused as an incidental and not intended by-product of such a discussion does not necessarily lead to a finding of punishable contempt.

17. A limited parallel may be drawn with s.5 of the Contempt of Court Act (1981) (U.K.). That section reads:

"A publication made as or as part of a discussion

in good faith of public affairs or other matters of

general public interest is not to be treated as a

contempt of court under the strict liability rule

if the risk of impediment or prejudice to

particular legal proceedings is merely incidental

to the discussion."

"with the publication to the public or a section of

the public of matter which tends to interfere with

the course of justice in particular legal

proceedings, and they seek to hold the balance

between the competing public interest of what

American lawyers pithily described as 'fair trial

and free press'."

18. In my opinion, the decision whether to punish conduct alleged to constitute a contempt of court must depend, in the last resort, on the intention of the person charged and the nature and extent of the interference with the fair conduct of the legal proceeding. If the interference is intended and would otherwise justify condemnation by the court, there can be no question of any defence based on a submission that the publication in question was made in the course of a discussion of a matter of public importance. If the interference was unintended, and occurred in the course of discussion of a matter of public importance, then a balancing exercise will be appropriate. If the pending proceedings are central to the discussion then it is unlikely that the interference can be excused as incidental or that any matter of public interest may excuse it. Even if not central, the seriousness of the interference may outweigh any public interest in the freedom to discuss the matter. For example, if the media prejudges issues to be litigated in a proceeding (e.g., as in Director of Public Prosecutions v. Australian Broadcasting Corporation) or canvasses the evidence so as to engage in a trial by media, this would be likely to so embarrass the fair trial of the proceeding as to bring the scales down heavily in favour of a finding of punishable contempt. Similarly with exposure of the criminal record of a person awaiting trial of a criminal offence. Of course, there are some respects in which the law has already decreed a freedom to the media to publish prejudicial material; for example, in the freedom to publish fair reports of preliminary court proceedings, including bail applications and committal proceedings. But this freedom is strictly circumscribed, reflecting the strength of the law's concern to protect the due administration of justice from unjustifiable interference. Generally speaking, it is for a court, in determining whether impugned conduct should be condemned and punished as a contempt of court, to engage in a balancing exercise between competing public interests. Nevertheless, the law provides guidance of the kind I have indicated in determining the relative weight to be accorded to the factors which in a particular case may require consideration.

19. It should be emphasized that the law as I have expounded it does not leave editors and publishers at the mercy of discretionary decisions of individual judges. Notwithstanding the reference in Waterhouse to "discretionary judgment" - a phrase used by the Court when refusing the application for special leave to appeal - a decision which is the outcome of the balancing process is not a discretionary judgment. It is the result of an evaluation, consistently with accepted judicial principle, of competing matters of fact. The criminal justice system supplies a number of situations where a similar process takes place; for example, the evaluation of negligent conduct causing death to determine whether the negligence is so gross as to justify a verdict of manslaughter, or the consideration of a defence of provocation to a charge of murder. These are not discretionary decisions, any more than the decision whether a publication which would otherwise constitute a contempt of court is saved from punitive consequences because of the circumstances in which it occurred. If the court is left with any reasonable doubt about the answer to that question then of course the prosecution will fail.

20. It remains to consider in a little more detail the effect of a significant delay between the impugned publication and the likely date of trial of the proceeding. It was submitted for the appellants that delay was a significant factor in this case and that the Court should proceed on the basis that at the time of each broadcast it could be expected that at least ten months were likely to elapse before the trial of Mr Glennon would take place. It was argued that, given the transient hold on the mind of the listener that could be expected of information conveyed in a radio broadcast, the effect of such a lapse of time was to lessen the prejudice that might otherwise flow from the broadcast. As I have said, the lapse of time between publication and trial is a factor which is relevant primarily to the question whether the publication has the requisite tendency to prejudice a fair trial and might therefore be thought to be excluded from consideration by the terms of the grant of special leave. However, it was submitted by Counsel that the likely lapse of time is also relevant to the balancing exercise which is required to be undertaken in the present case. I am prepared to accept the submission. If it is appropriate to undertake a balancing exercise then all the circumstances should be considered, including the circumstances which tell for or against the seriousness of the likely interference which the publication offers to the administration of justice. The anticipated lapse of time before trial may be a factor which so diminishes, while not itself erasing, the likely prejudice of a publication as to enable the defence of discussion of a matter of public interest to succeed in raising a reasonable doubt in circumstances where if the trial was imminent it would not have done so. In the BLF Case several members of the Court mentioned the likely lapse of time between the proceedings of the royal commissions and the hearing of the application for de-registration in the Federal Court as a relevant factor in their consideration of the matter. Nevertheless, in the present case I do not consider that the likely lapse of ten months between the broadcasts and the trial of Mr Glennon is of sufficient weight to assist the appellants. In the first place, it overlooks the fact that the committal proceeding was set to take place in April 1986 and the material broadcast was such that it might affect the witnesses who were to give evidence in that proceeding. Secondly, I accept the views expressed by the learned trial judge as to the durability of the prejudice likely to be occasioned by the broadcast. The nature of the programme, the sensational character of the information disclosed and the fact that it was published on three occasions over a period of four months provide support for his Honour's conclusion.

21. I have given careful consideration to the submissions advanced for the appellants as to the importance of the matter of public interest about which Mr Hinch felt so deeply and the cause which he had served so well in the past. Nevertheless, I am constrained to resolve these appeals against the appellants. The broadcasts were occasioned by the charges laid against Mr Glennon and they dealt solely with him and his antecedents. They disclosed matters of criminal record and suspicion which would not have been admissible at the trial and which if known to the jurors, and perhaps to the witnesses, would render a fair trial well nigh impossible. Moreover, in my opinion, the tenor of the broadcasts and in particular Mr Hinch's repeated statement that

"I know the question police are asking is how many

other children may have been involved, how many

other children may have been too scared over the

years to come forward"

"They (the broadcasts) held Glennon up to public

obloquy, they vilified him at a time when charges

were known by Mr. Hinch to be pending against him

and they had in my opinion the effect of creating a

real risk of prejudice to Glennon's fair trial by

effecting the pre-judgment of witnesses and jurors

at his committal and trial respectively."

22. Reference must be made to a further ground of appeal, namely, that evidence sought to be tendered on behalf of the appellants was wrongly rejected by the learned trial judge. The material in question was before the Court on the hearing of these appeals and was the subject of submissions by counsel for the appellant Macquarie Broadcasting Holdings Limited. I find it unnecessary to consider the admissibility of that evidence because even if it had been admitted, in my opinion it could not have affected the outcome of the case.

23. I would dismiss the appeals.

DEANE J: Under the common law of this country, there are several distinct categories of contempt of court. This case is concerned with contempt by publishing material in circumstances where the publication tends to prejudice the fairness of particular legal proceedings. The relevant facts and the text of the three separate statements about Father Michael Glennon ("Glennon") published over Radio Station 3AW (Melbourne) are set out in the judgment of Toohey J. It is unnecessary that I repeat them. It is convenient to indicate at once what I see as the applicable principles of law.

2. The publication of material in circumstances where the clear tendency of the publication is to preclude or prejudice the fair and effective administration of justice in particular pending legal proceedings constitutes contempt of court unless, as a matter of weighing competing public interests, the detriment of the possibility of prejudice to the administration of justice is outweighed by other identified factors such as the public interest served by freedom of discussion of matters of public importance and by the exposure of public dangers and abuses (Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F. Case") [1982] HCA 31; (1982) 152 CLR 25; Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242, at pp 249-250). While the act of publication must be intentional, an intention or purpose of prejudicing the due administration of justice is not an essential ingredient of this type of contempt of court (John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p 371). The "critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important" (per Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ., Lane v. Registrar of Supreme Court of N.S.W. [1981] HCA 35; (1981) 148 CLR 245, at p 258 and see, generally, Registrar of the Court of Appeal v. Willesee (1985) 3 NSWLR 650, at pp 658 (Kirby P.) and 673-676 (Hope J.A.)). Thus, a finding that the publication in fact has a clear tendency to prejudice the due administration of justice may well, particularly in the context of the criminal onus of proof (see below), be more readily made in a case where the conduct was engaged in for that very purpose than in a case where any such interference would be but an unintended and incidental side effect. In referring to a publication having a "clear tendency" to interfere adversely with the due administration of justice, I have intended to convey no more than that the publication must reveal such a tendency "as a matter of practical reality" (see John Fairfax & Sons Pty. Ltd. v. McRae, at p 370). What is required is that the nature and circumstances of the publication are such that it can be plainly discerned that there is a "real and definite possibility" that it may "prejudice the administration of justice" (see Attorney-General for New South Wales v. John Fairfax & Sons Ltd. & Bacon (1985) 6 NSWLR 695, at pp 697-698 (Samuels J.A.)).

3. The formulation of principle in the first sentence of the preceding paragraph essentially reflects the approach accepted by three of the four justices who constituted the majority of the Court in the B.L.F. Case (Mason J. (at pp.95-100), Wilson J. (at pp.133-137) and Aickin J. who indicated (at p.119) his agreement with Wilson J. on this aspect of the case), namely, that the second limb (i.e. not outweighed by competing public interests) is an integral part of a description of this category of contempt (see, also, Attorney-General v. Times Newspapers Ltd. (1974) AC 273, at p 302 (per Lord Morris of Borth-y-Gest) and, as to the absence of any continuing rationale for distinguishing between "punishable" and "non-punishable" contempt, Attorney-General for New South Wales v. John Fairfax & Sons Ltd. & Bacon, at pp 707-708 (McHugh J.A.)). An alternative approach, which was favoured by some members of the House of Lords in the Times Newspapers Case (see, in particular, the speeches of Lord Reid (at pp.298-299, 301) and Lord Diplock (at pp.311-312)) and by Gibbs C.J. (at p.60) and Brennan J. (at pp.175-177) in the B.L.F. Case, is that the second limb of the description is concerned not with the identification of what technically constitutes this category of contempt but with a subsequent balancing exercise involved in determining whether conduct which constitutes (or would, if engaged in, constitute) contempt of court should be punished (or enjoined). The B.L.F. Case cannot properly be seen as finally determining which of those approaches is to be preferred since neither Stephen J. nor Murphy J. expressed any clear view in that regard (see, also, the comments of Hope J.A. in Registrar of the Court of Appeal v. Willesee, at p 676 suggesting that Aickin J's expression of agreement with the judgment of Wilson J. had a more limited scope than that which I have attributed to it). No doubt because of the restrictions upon the grant of special leave to appeal, the implications of the distinction between the two approaches were not fully investigated in argument. As will appear, the effect of the conclusions which I have reached is that the present appeals against conviction must be dismissed regardless of which approach is adopted. In these circumstances, I have accepted the more demanding two-limbed description of contempt of court (i.e. that favoured by Mason, Aickin and Wilson JJ. in the B.L.F. Case) for the purposes of this judgment without forming a concluded view about the comparative merits of the alternative approach.

4. There was, in the course of argument, some debate about whether the second limb of the above description of contempt of court by publication is, in any event, not applicable to a case where the pending proceedings are criminal. There is something to be said for the view that the fair administration of criminal justice is of such fundamental importance to the social compact underlying a democratic society that a publication which has a clear tendency to interfere with it adversely could never be justified by countervailing public interest considerations. Upon balance however, it seems to me that the preferable view is that which was implicit in the judgment of Dixon C.J., Fullagar, Kitto and Taylor JJ. in John Fairfax & Sons Pty. Ltd. v. McRae, at p 372 and which was favoured by the members of the New South Wales Court of Appeal in Registrar of the Court of Appeal v. Willesee (at pp 659-660, 677-680, 681-682), namely, that the second limb of the description applies regardless of whether the pending proceedings are civil or criminal. Obviously, however, the nature of the pending proceedings in relation to which the publication is likely to prejudice the fair and impartial administration of justice will be an important, and sometimes decisive, factor in the weighing of competing public interests.

5. The classification of contempts of court as criminal or civil has, in the past, involved the anomaly that some contempts have been classed as civil notwithstanding that they have been or may be visited with the consequences of imprisonment or fine (see, e.g., Scott v. Scott (1913) AC 417, at pp 455-457 (Lord Atkinson); Attorney-General v. Times Newspapers Ltd. at pp 307-308 (Lord Diplock); Comet Products v. Hawkex Plastics (1971) 2 QB 67, at p 73 (Lord Denning M.R.) and p 77 (Cross L.J.) and note the suggestion, in Australian Consolidated Press Ltd. v. Morgan [1965] HCA 21; (1965) 112 CLR 483, at pp 493, 497-502, 516, that the consequences of contempt, where an order for costs is inadequate, are either fine or imprisonment in the case of criminal contempt but imprisonment alone in the case of civil contempt). Such anomaly may have been susceptible of rationalization in past times (see, e.g., per Lindley L.J., Seaward v. Paterson (1897) 1 Ch 545, at pp 555-556 and, generally, Arlidge and Eady, The Law of Contempt, (1982), pp 49ff). It should no longer be accepted in this country where, regardless of whether it be imposed in proceedings brought by the Attorney-General or some other official acting in the public interest or by a private individual for the indirect or coercive enforcement of a civil order, imprisonment or fine as a consequence of a finding of contempt of court cannot be justified otherwise than as a punishment for past or continuing breach of law. Proceedings seeking the imposition of such punishment upon an alleged contemnor (or an order for sequestration in the case of a company) must realistically be seen as essentially criminal in nature (see, generally, the comments of Mathew J. in In re Maria Annie Davies (1888) 21 QBD 236, at p 238). In any event, it is plain that the offences of which the present appellants were found guilty and for which they have been sentenced were, even on traditional classification, criminal contempts and that the proceedings giving rise to the present appeals were, as the learned trial judge held, criminal in nature.

6. Viewed in the context of the common law, there are some unusual features of both the offence of contempt of court by publication and the criminal procedure for its punishment. Thus, as has been said, it is not necessary that the publication be made with an actual purpose or intention of prejudicing the due administration of justice. In that sense, there is no full requirement of mens rea. Again, the procedure for the punishment of the offence is summary in character regardless of penalty and the content of punishment is, to an extent that is quite undesirable, left to judicial discretion. Notwithstanding such unusual features however, there can, in my view, be no room for doubting that the onus of proof which must be satisfied in criminal proceedings for punishment of an offence of contempt of court, such as the proceedings in the present case, is the ordinary criminal onus of proof beyond reasonable doubt (see, e.g., Rex v. Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248, at p 258; Consolidated Press Ltd. v. McRae [1955] HCA 11; (1955) 93 CLR 325, at p 333; In re Bramblevale Ltd. (1970) Ch 128, at p 137; Comet Products v. Hawkex Plastics, at p 73). It was that criminal onus which had to be satisfied in the present case.

7. The ingredients of the offence of contempt of court by publication prejudicing the administration of justice are constant. If the requirement that detriment be not outweighed by countervailing public interest be seen as an essential ingredient of this category of contempt however, the difference between the criminal and civil onus of proof will, once that balancing stage is reached, necessarily result in the decisive question in criminal proceedings for punishment being different from that appropriate to civil proceedings for injunctive or other civil relief. In civil proceedings to restrain threatened conduct which would have a clear tendency to prejudice the due administration of justice in relation to pending proceedings, the decisive question is whether it appears to the satisfaction of the relevant court that, on the balance of probabilities, the public interest detriment constituted by that tendency is outweighed by other identified countervailing public interests. If it does not appear that that detriment is so outweighed, those other public interest considerations will neither preclude a finding that the conduct would constitute contempt nor justify a refusal of injunctive relief. On the other hand, in criminal proceedings for punishment of an alleged past contempt, it will not suffice to found a verdict of guilty that the court, on balance, thinks that detriment was not outweighed by other public interest considerations. The question whether detriment was so outweighed is one of fact and the criminal onus of proof requires effectively that there be no room for reasonable doubt about the matter: if "a court is in doubt whether conduct complained of amounts to 'contempt' the complaint will fail" (per Lord Morris of Borth-y-Gest, Attorney-General v. Times Newspapers Ltd., at p 303). In practical terms, that means that, in a case such as the present where the public interest factors upon which the accused rely have been identified, the issue ultimately resolves itself into a question whether the view that detriment was outweighed by countervailing public interest considerations was reasonably open. If it was, it could not properly be said that it was clear beyond reasonable doubt that detriment had not in fact been outweighed by countervailing benefit. I have framed that ultimate question in the past tense for the reason that it must be answered as at the time of the alleged offence.

8. There is, of course, nothing unusual in there being a difference in the ultimate question according to whether proceedings relating to the same conduct are criminal or civil. Nor is there any reason in principle or policy why that should not be so in the case of proceedings relating to actual or threatened contempt of court of the category here under consideration. As a matter of principle, the difference between the criminal and the civil onus of proof inevitably means that even though the elements of the proscribed conduct do not vary, the ultimate question which results from a synthesis of those elements and the requirements of the applicable onus will be more demanding in criminal proceedings than that which will suffice for the purposes of civil proceedings relating to that class of conduct. As a matter of policy, such variation in the ultimate question can be readily justified. Thus, in civil proceedings, a court may, for example, be called upon to consider the claim of a litigant that the administration of justice in relation to proceedings to which he is a party will be unjustifiably prejudiced by threatened conduct. If, as a matter of practical reality, the possibility of prejudice is established and it appears, in the circumstances, that the detriment constituted by that possibility is not outweighed by other public interest considerations, there is no acceptable reason why the possible prejudice should not be prevented by the grant of injunctive relief. On the other hand, if no civil proceedings for injunctive relief have been instituted, there are obvious reasons why a person genuinely wishing to discuss a subject of public interest should not be faced with a situation in which he may or may not be guilty of, and punishable for, criminal contempt according to whether or not the particular judge who hears his case considers that the detriment constituted by the clear tendency to prejudice the due administration of justice in relation to a pending trial was outweighed by other public interest considerations. Criminal guilt or innocence should not turn upon an essentially discretionary judgment of the comparative claims of competing public interests. The minimum element of objectivity in the administration of the criminal law is ensured by the requirement of the criminal onus of proof which will not be satisfied if the view that what was done was justified by countervailing considerations of public interest was reasonably open in the circumstances with the consequence that it cannot properly be said that it is established beyond reasonable doubt that detriment was not outweighed by those other considerations.

9. The grant of special leave to appeal in the present case was "restricted to the effect of the observations of Chief Justice Jordan in (the Bread Manufacturers' Case) and the views expressed by the members of this Court (in the B.L.F. Case)". Consideration of those observations and views requires that mention be made of two further matters of law before I turn to the issues of fact involved in the present appeal. The first relates to the boundaries of the area in which the detriment of possible prejudice to the due administration of justice can be outweighed by countervailing public interest considerations. In a case where the publication is in the mass media and is directed solely to the merits of the very issue to be determined in the pending proceedings (e.g. the guilt or innocence of an accused), there would be no countervailing public interest consideration which might effectively outweigh the detriment of a clear tendency to prejudice the due administration of justice. The reason for that is that it will be apparent in such a case that any abstract public benefit involved in freedom of public prejudgment of the merits of the very issues committed for resolution in pending court proceedings will be outweighed by the detriment to the due administration of justice (see the B.L.F. Case, at pp.98-99 (Mason J.)). The critical passages in the judgment of Jordan C.J. in the Bread Manufacturers' Case (at pp.249-250) would seem, however, to go well beyond that limitation by confining the cases in which detriment to the due administration of justice may be outweighed by countervailing public interest considerations to cases where such detriment is "an incidental but not intended by-product" (ibid., at p.249) of publication directed to other public interest considerations. That reading of Jordan C.J's judgment is supported by his Honour's reference to pp.430-432 of the report of the dissenting joint judgment of Isaacs and Rich JJ. in Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419. On that approach, an "intended", albeit "incidental", interference with the due administration of justice which would otherwise constitute contempt of court could never be excused by other public interest considerations which the publication was primarily made to advance; nor could a direct mass media canvassing of the merits of particular litigation or, to take an extreme case, of the guilt or innocence of an accused person. While I can see force in that approach and, particularly if "intended" is interpreted as introducing an element of seeking or desiring (as distinct from being aware of) the by-product of a deliberate act, have some difficulty in formulating other than unlikely examples of circumstances where a mass media publication which adversely and intentionally interfered with the due administration of justice or which directly canvassed the question of the guilt or innocence of an accused person could arguably be seen as justified by public interest considerations, I am not persuaded that, as a matter of principle, the area of a possible justification must be so confined. The second matter is related to the first and concerns the identification of possible countervailing public interest considerations. It should be apparent from what I have written above that I consider that it is neither practicable nor desirable to attempt to define in advance the precise limits of possible countervailing public interests which may be taken into account as being furthered by a particular publication in the circumstances of a particular case. Apart from impracticability, the main reason why it is not desirable is that, once it is accepted that a person may be guilty of contempt of court by publication notwithstanding the absence of an actual purpose or intention of prejudicing the due administration of justice, the general applicability of the requirement that detriment be not outweighed by countervailing public interest considerations and the broad possible content of those other public interest considerations combine, in the context of the criminal onus of proof, to provide some safeguard against the law of contempt being turned upon itself and converted into a source of exposure of the courts and of the law to the absurdity and distrust which are unavoidable when the administration of justice is diverted to the pursuit of the trivial and the criminalization of the essentially harmless and inevitable (see the discussion in the judgment of Kirby P. in Registrar of the Court of Appeal v. Willesee, at pp 655-659).

10. None of the publications involved in the present case expressly adverted to the question of Glennon's guilt or innocence of the charges involved in the pending proceedings. In each of the first and third broadcasts however, Mr. Hinch asserted (with slight variation in wording) that he knew that "the question police are asking is how many other children may have been involved; how many other children may have been too scared over the years to come forward" (emphasis added). The inference in that assertion, when it is read fairly in the context in which it was made and repeated, was that Glennon was guilty of the charges of sexual offences against children which were involved in the pending proceedings against him. The ground work for such an inference of guilt was laid in the introductory section of the first broadcast which consisted of a series of examples of people abusing a "position of trust and authority for their own sexual gratification". That was followed by a description of the pending charges against Glennon and the statement that "police have said five youths have made statements, alleging the offences that took place at the Youth Foundation ... during the period from 1975 to 1982" (emphasis again added). A list of previous criminal charges against Glennon was then recited: a charge of indecent assault of a 16 year old girl of which he had been convicted in 1978; a charge of rape on which "police did not proceed"; "two counts of rape of a 12 year old boy" of which he had been acquitted. The accumulation of the pending charges, the one conviction, the one charge not proceeded with and the two acquittals provided the basis of the rhetoric "how many other children ... involved" and "how many other children ... too scared ... to come forward". The language and imagery of the broadcasts in which a public imputation of guilt was effectively made against a man awaiting the hearing of committal proceedings were unrestrained and evocative: "despicable"; "sickening"; the doctor abusing "fear of a mastectomy to fondle his patient"; the "father figure" who "exploits that trust and molests a scout or a cub or a school pupil"; the use of position "for personal sexual gain"; "a Catholic priest who allegedly used his clerical robes as a bait for his flock"; "poachers in the sanctuary"; "prey on the vulnerable".

11. In Australian Building Construction Employees' and Builders' Labourers' Federation v. Commonwealth [1981] FCA 163; (1981) 53 FLR 396, at pp 401-402, I pointed out that it was established by authority that statements made or actions taken will have a tendency to affect adversely the due administration of justice in relation to particular pending proceedings if they have a tendency to operate in any of three related ways:

"(i) to interfere with the fair and proper conduct

of the trial of a particular pending cause by

influencing the court or prospective witnesses in

respect of the matter generally or in respect of

particular issues or questions involved in it; (ii)

to disparage or vilify a party to litigation or a

witness in a party's cause because he is a litigant

or witness or because of the litigation or

allegations made in it; or (iii) to prejudice or

bias the public mind in favour of one side as

against the other side and thereby substitute

prejudgment or, in some cases, pre-trial by the

media, for determination by the courts of the

land."

12. It was submitted on behalf of the appellants that any prejudice to a fair trial was avoided or effectively rendered insubstantial by reason of the interval of time which could be expected to elapse before any trial by jury. Notwithstanding the limits of the grant of special leave to appeal, that submission is open since assessment of the detriment constituted by a tendency to interfere adversely with the due administration of justice is necessary in relation to the question whether any such detriment was outweighed by countervailing public interest considerations. It seems to me to be plain that, in the circumstances of the present case, the likely lapse of time before any ultimate trial would not avoid the very real possibility that the publications would adversely interfere with the due administration of justice. The prejudgment of guilt, in the context of the extreme disaffection which the learned trial judge rightly found the public statements were likely to arouse, was an affront to the administration of justice in relation to the pending committal proceedings as well as to any subsequent trial. Potential witnesses, as well as prospective jurors, were obviously likely to be affected by the public denouncement of Glennon as a priest who had "a sexual criminal record involving juveniles" and by the public insinuation of guilt, not only of the offences of "child molestation" of which he stood charged, but of other still hidden sexual offences "over the years" involving "how many other children ... too scared to come forward". It could not be suggested that the possibility of prejudice of that kind to the administration of justice in relation to the pending committal proceedings would be avoided by any anticipated lapse of time. Moreover, the learned trial judge obviously was of the view that the strong prejudice against Glennon which the broadcasts would arouse in a responsive listener would, in the context of the unusual circumstances of the case and the vehemence of the publications, persist until any ultimate trial at least in the subconscious. As his Honour commented, the

"effect of the message would be very likely to

remain ready to be re-livened or re-awakened when

evidence at his trial is led. Only one juror would

need to recall some part of the detail of his prior

offences, or alleged offences, for his fair trial

to be likely to be prejudiced.

...it is also likely that witnesses wavering

in their resolution as to any value judgment that

they might have to make concerning the facts, or

entertaining any doubts as to his or her testimony,

would be stiffened and fortified adversely to

Glennon by the knowledge of the facts of his prior

criminal history as stated by Mr. Hinch. They

would be far more likely to jump to

conclusions."

13. I turn to the critical question involved in the appeals, namely, whether the learned trial judge was correct in concluding that other public interest considerations did not operate to preclude the publication of the contents of the three broadcasts from constituting contempt of court. The appellants have identified what they claim to have been countervailing public interest considerations outweighing any possibility of prejudice to the due administration of justice. In essence, those suggested countervailing considerations are what Jordan C.J. referred to, in the Bread Manufacturers' Case, at p.249, as the necessity for the "discussion of public affairs and the denunciation of public abuses, actual or supposed". For the reasons given above, the relevant question for the learned trial judge was not whether his personal assessment of comparative views led him to conclude that the countervailing considerations outweighed the detriment of possible prejudice to the due administration of justice. In the context of the criminal onus of proof, the relevant question was whether it was clear beyond reasonable doubt that they did not.

14. Freedom of public discussion of matters of legitimate public concern is, in itself, an ideal of our society. The fact that judicial proceedings have been instituted does not remove such matters from the area of legitimate public comment, public discussion and public inquiry. Matters of importance or concern or interest to the nation, to a particular section of the community or to particular individuals are commonly involved in judicial proceedings and it would be oppressive and futile to adopt the approach that the mere fact that they are so involved should automatically remove them from the public domain. The restrictions imposed by the law of contempt of court upon freedom of speech can only be justified if their operation is confined to circumstances where there can be discerned a clear tendency to interfere adversely with the due administration of justice and where the detriment of that tendency is not outweighed by the combination of the abstract public interest in freedom of discussion and any specific public benefits of such discussion in the circumstances of the particular case. In that weighing process in a case involving prejudice to the due administration of justice in relation to particular pending proceedings, the weight to be given to the detriment of possible prejudice to the due administration of justice will, as has been said, vary according to the nature of the proceedings. The area in which restriction upon the freedom of discussion is most readily justifiable in the interests of the due administration of justice is in the area of the administration of the criminal law. It is in that area that one finds the category of publication which is most difficult, if not impossible, to justify by reference to countervailing public interest considerations. That category of publication is that involving a public imputation through the mass media of guilt of a criminal offence made against a person who is awaiting his or her trial on a charge of that very offence (see per Street C.J., Hope, Glass, Samuels and Priestley JJ.A., Director of Public Prosecutions v. Wran (1986) 7 NSWLR 616).

15. The end question to which each of the broadcasts in the present case was expressly directed was how it could be that Glennon continued to exercise control of a Youth Foundation concerned with the care of children. That question was, in the circumstances of Glennon's past conviction and in the context of the pending charges against him, one of public importance. Even if there had been no past conviction, it would be a matter of legitimate public concern that a person awaiting trial on charges involving alleged sexual assault of children should continue, pending trial, to act in a position of confidence and authority involving the care and control of the young. So to say carries no implication of prejudgment of guilt. It is simply to recognize that there are positions in public life and in public service in relation to which serious suspicion or allegation of particular types of wrongdoing must, while it remains unresolved or unanswered, be seen as a disqualifying factor. It appears to me that the public interest considerations favouring freedom of discussion to suggest or demand that Glennon step aside or be removed from active involvement in the affairs of the youth foundation pending the resolution of the charges of sexual offences against children which were pending against him were reasonably capable of being seen, in all the circumstances, as outweighing the detriment of the possible prejudice to the due administration of justice in relation to the trial of those charges. A more difficult question is whether the view was reasonably open that, notwithstanding the possibility of grave prejudice to the due administration of justice in relation to the pending proceedings against Glennon, public reference to the past conviction might also have been justified if that disclosure had been divorced from any prejudgment of present guilt. As the judgments of the learned trial judge and of the Chief Justice and Kaye J. in the Full Court of the Supreme Court demonstrate, there is much to be said for the view that the reference to Glennon's past conviction, in the context of the detailed reference to the pending charges, of itself sufficed to place the broadcasts beyond effective justification. However, I find it unnecessary to pursue that question since it seems to me to be plain that, on no approach could countervailing public interest considerations reasonably be seen as justifying the worst feature of the publications, namely, the poisoning of the stream of criminal justice by the clear inference, in the first and third broadcasts, that Glennon was guilty of the very charges involved in the pending committal proceedings. In the context of the unrestrained language, the evocative imagery and the disclosure of the past conviction and the earlier criminal proceedings, that clear inference of present guilt gave the overall broadcasts the effect of media pre-trial and prejudgment.

16. The right to a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law. It is difficult, if not impossible, to envisage any situation in which countervailing public interest considerations could outweigh the detriment to the due administration of justice involved in public prejudgment by the mass media of the guilt of a person awaiting trial. Certainly, it is clear beyond any reasonable doubt that there were no countervailing public interest considerations which outweighed the detriment of the mass media prejudgment of guilt in the present case. To the contrary, that prejudgment of guilt would inevitably militate against the very public interest considerations which the publications are said to have advanced in that the suggestion that a person should stand aside from the performance of particular functions for the reason that he is guilty of the offence of which he is charged will inevitably tend to create a situation in which he may well consider that to yield to the public pressure to follow that course will wrongly be construed as an admission of guilt.

17. It follows that I can see no grounds for interfering with the decision of the learned trial judge, confirmed by a majority of the Full Court of the Supreme Court, that the appellant, Mr. Hinch, be convicted of two offences of contempt of court. To the contrary, I fully agree with it. It was not suggested on behalf of the appellant, Macquarie Broadcasting Holdings Limited, that there were any independent grounds for upholding its appeal in the event that Mr. Hinch's appeal failed.

18. I would dismiss the appeals.

TOOHEY J. These appeals are against convictions for contempt of court against Derryn Hinch, a radio journalist in Victoria, and against Macquarie Broadcasting Holdings Limited, the owner and operator of Radio Station 3AW, Melbourne.

2. Leave to appeal was granted in limited terms and these reasons must be read accordingly. In each case the appeal was restricted

" ... to the effect of the observations of Chief

Justice Jordan in Ex-parte Bread Manufacturers

Ltd.; Re Truth & Sportsman Limited and Another

(1937) 37 SR NSW 242 and the views expressed by

the members of this Court in Victoria v. Building

Construction Employees' and Builders Labourers'

Federation [1982] HCA 31; 152 CLR 25 and to exclude any matter

relating to:-

(a) the question of penalties; and

(b) any argument based on the proposition that

the Full Court of the Supreme Court should

have applied the practice which is observed

in New South Wales, in deferring the hearing

of contempt motions until after the

determination of the criminal trial."

3. The radio broadcasts, in respect of which contempts were found to have occurred, took place on 13 and 15 November 1985 and on 11 March 1986 on Radio Station 3AW. The first two broadcasts were held to constitute one contempt, for which Mr. Hinch and Macquarie Broadcasting were each fined $25,000. On the conviction for the third broadcast, Mr. Hinch was sentenced to imprisonment for a period of forty-two days and Macquarie Broadcasting was fined $30,000. On appeal to the Full Court of the Supreme Court of Victoria all convictions were upheld. But in respect of the first conviction the fines imposed on Mr. Hinch and Macquarie Broadcasting were reduced to $15,000; in respect of the second conviction the sentence of imprisonment imposed on Mr. Hinch was reduced to twenty-eight days and the fine imposed on Macquarie Broadcasting was reduced to $25,000.

4. The primary judge, Murphy J., found that a contempt had been committed by reason of a number of references in the three broadcasts to one Michael Glennon. Each broadcast, he said, "had a real and appreciable tendency, from a practical point of view, to prejudice listeners against Glennon and to influence the forthcoming committal and trial of Glennon in a manner adverse to him". The references must be taken in context and it therefore seems necessary to set out each of the broadcasts in its entirety. To this end the broadcasts appear as appendices to these reasons for judgment.

5. Mr. Hinch has been a journalist for twenty-five years, with experience in New Zealand, Canada, the United States and Australia. Since 1979 he has conducted the "Derryn Hinch Programme" on Radio Station 3AW, a programme over which he has full editorial control. The programme is broadcast each week-day morning from 8.30 a.m. until 12.00 p.m. It was described in the following way by Mr. Hinch in an affidavit filed in the proceedings:

" The programme is a newspaper magazine of the air.

It begins with editorial comment and then goes on

to news items and interviews. There are about

seven or eight interviews each day. Items of

political and general interest are discussed and

canvassed. There are talk back elements in the

programme. I regard the main purpose of the

programme as being to inform, rather than to

entertain."

6. It may be accepted from the evidence that over a period of about three years preceding these broadcasts Mr. Hinch had been concerned about the social problem of child molestation and had from time to time used his programme to discuss it. His particular concern was what he regarded as a lack of action in regard to child molestation, in part springing from the low incidence of the reporting of such conduct and also from an unwillingness on the part of the community to engage in open discussion. In his programme Mr. Hinch had spoken with police officers and others whose work involved the welfare of children. The importance of his role in alerting the community was acknowledged by police officers and representatives of community organizations in evidence given to Murphy J.

7. The circumstance giving rise to the first broadcast was the appearance of Michael Glennon in the Preston Magistrates' Court the previous day. Glennon had been charged on nine counts of indecent assault, one count of buggery and two counts of assault with intent to commit buggery. All charges related to teenage boys.

8. Glennon was an ordained Catholic priest but in 1978 his appointment as assistant priest to the parish of Reservoir was vacated by the Archdiocese of Melbourne, following Glennon's conviction on 14 April 1978 of the offence of indecent assault on a sixteen year old girl. Glennon was originally charged with rape but, when he pleaded guilty to indecent assault, the rape charge was not proceeded with. For this offence he was sentenced to two years' imprisonment. Since his release from prison he has not been re-appointed to any position within the Archdiocese.

9. In September 1984 Glennon was charged in the Melbourne County Court with two counts, identified only as "rape of a twelve year old boy". He was acquitted of those charges.

10. While Glennon was in the parish of Reservoir, he formed a company known as the Peaceful Hand Youth Foundation Pty. Ltd. The Foundation is a non-profit company with Glennon as its governing director. He is described in a brochure relating to the affairs of the Foundation as "Rev. Father Michael Glennon". The Foundation controls a number of youth organizations and owns forty acres of bush land at Lancefield in the Victorian countryside, on which camps have been erected for youth. Glennon plays an active part in the Foundation and in the running of camps. The objects of the Foundation, as described in its memorandum, include promoting the social, physical, moral and spiritual development of young people and training them in a range of sporting and physical activities. The clubs controlled by it are said to involve up to a thousand children, aged six and upwards.

11. When he appeared in the Preston Court on 12 November 1985, Glennon was released on bail on his own recognizance with a surety of $2,000. He remained as governing director of the Foundation and still occupied that position at the time of the third broadcast on 11 March 1986. On 7 March 1986 he was charged with one count of rape and two counts of indecent assault on a female. These offences were alleged to have been committed at Lancefield (the address of the Foundation's camp) between July and November 1982. Glennon was granted bail on his own recognizance to appear in the Melbourne Magistrates' Court on 8 April 1986.

12. The notices of motion alleging contempt of court on the part of the appellants asserted that the broadcasts were:

" (a) likely or calculated or had the tendency to

prejudice the fair trial of Michael Glennon;

(b) likely or calculated or had a tendency to

prejudice the due administration of justice."

" Each broadcast as a whole and also both

broadcasts together were likely to influence

potential witnesses and jurors because :

(a) They describe the accused in terms calculated

to arouse hatred and contempt.

(b) They refer to the accused's previous bad

conduct and convictions for like offences.

(c) They tacitly assume that the accused is

guilty of the offences with which he was

charged and other offences with which he was

never charged.

(d) They constitute trial by media.

(e) The second broadcast recites a statement made

by the accused to the respondents in relation

to the merits of the charges against him."

13. Murphy J. expressed himself in strong terms about the conduct of Mr. Hinch in making the broadcasts. He said of the broadcasts in general:

" It was a deliberate onslaught sparked off by the

proceedings taken against Glennon and directed

specifically at Glennon, identifying him,

mentioning his prior conviction and sentence to

gaol, his prior acquittals of sexual charges of

rape, and suggesting his possible guilt of other

offences which may never have come to light - all

done with foresight by Mr. Hinch of the possible

consequences, namely prejudice to Glennon's fair

trial."

" In my opinion the broadcasts, and each of

them, would have influenced most listeners to

conclude that Glennon was a despicable man, a

dissembling priest, who corrupted young people

after using his pseudo-clerical position to gain

their trust.

A strong feeling of hostility towards Glennon

must, in my opinion, have been created.

Reference is made, as I said, to his prior

conviction and gaoling, to his prior acquittals

on similar charges, and to at least the

possibility that many other offences had been

committed but never seen the light of day and it

might be implied that such offences perhaps could

involve Aboriginal children.

These statements were all extremely

prejudicial and improper and unfair

considerations to put before witnesses and

potential jurors. Our system of justice, as

Mr. Hinch knew, would not have allowed them to be

led in evidence and a jury which heard them would

be discharged."

14. In the Full Court Young C.J. and Kaye J. upheld the primary judge's conclusion that each broadcast constituted a contempt. Nicholson J. dissented, being of opinion that in all the circumstances none of the broadcasts amounted to a contempt of court.

15. In his judgment Kaye J. summarized what he regarded as the relevant considerations in determining whether the broadcasts had the required tendency to prejudice Glennon's fair trial or to prejudice the due administration of justice. It is useful to set out these matters as summarized by his Honour:

" Firstly, the broadcasts were made immediately

after Glennon had been charged and before

committal proceedings had taken place. Secondly,

they were addressed to approximately 200,000

listeners of whom 100,000 were expected to be

within the metropolitan area. Thirdly, in each

broadcast Father Michael Glennon was identified

by name as the person charged. Fourthly, by the

first and second broadcasts, it was made known to

the listening public that Glennon was charged

with sexual offences involving teenage boys, and

by the third broadcast they were informed that

Glennon was charged with rape and indecent

assault. Fifthly, Glennon's record of previous

convictions of sexual offences on teenage boys,

indecent assault, rape of a 12 year old boy, his

acquittal of similar charges, and the imposition

of a two year term of imprisonment upon him for

indecent assault was made public. Sixthly,

listeners were informed of police suspicion that

other children had been victims of sexual

assaults committed by Glennon."

16. Oversimplified, the argument on behalf of Mr. Hinch and Macquarie Broadcasting was that each broadcast related to a matter of general public interest and concern viz. child molestation, that there was no intention to interfere with the due process of Glennon's trial, that the statements were not directed at the question of Glennon's guilt or innocence of the charges against him, rather at the propriety of him remaining in charge of the Foundation when he was facing serious charges involving children and had a history of such charges, and that when the public interest in a fair trial was balanced against the public interest in being informed on a matter of concern to it, the balance came down against any contempt of court having been committed.

17. Again oversimplified, the Attorney-General's answer was that once a broadcast is found to have a tendency to interfere with the administration of justice, a contempt of court is made out unless the interference is the unintended or purely fortuitous by-product of, and merely incidental to, a discussion of a matter of public concern. It could not be said that broadcasts that dealt in such detail with the history of an accused person, including his previous convictions and acquittal of charges, could be the unintended or merely fortuitous by-product of and merely incidental to a discussion of child molestation.

18. The arguments of all counsel took as a starting point the well-known passage from the judgment of Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242. That case concerned a motion to attach Truth and Sportsman Ltd. for contempt of court in publishing two articles alleged to be likely to prejudice the fair trial of an action brought by a bread carter claiming damages for libel and conspiracy against Bread Manufacturers Ltd. At p.249 Jordan C.J. said:

" It is of extreme public interest that no

conduct should be permitted which is likely to

prevent a litigant in a Court of justice from

having his case tried free from all matter of

prejudice. But the administration of justice,

important though it undoubtedly is, is not the

only matter in which the public is vitally

interested; and if in the course of the

ventilation of a question of public concern

matter is published which may prejudice a party

in the conduct of a law suit, it does not follow

that a contempt has been committed. The case may

be one 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."

19. There has been some debate whether the principles enunciated by Jordan C.J. are confined to civil proceedings. In Registrar of the Court of Appeal v. Willesee all members of the Court of Appeal - Kirby P., Hope and Priestley JJ.A - in separate judgments concluded that the principles are not so confined. Kirby P. said at p.659:

" Neither in the Bread Manufacturers case itself

nor in the Sunday Times case, nor in the

Phillimore Report, is it suggested that the

principle is, or should be, limited to civil

proceedings. Because of the important work it

does in partially reconciling the law of

contempt, as it has developed, to the protection

of innocent and unintended publications which

incidentally affect proceedings before a court,

it is important that the principle should not be

so confined. Otherwise, a statement, published

in the course of legitimate discussion of matters

of public interest and concern, which

fortuitously and unexpectedly affects a criminal

trial in the jurisdiction, will attract

punishment by the law of contempt. And this will

be so, no matter where the trial was conducted

and no matter how serious or trivial or how

notorious or inconspicuous it was. It will be

so, no matter how reasonable or unreasonable it

may be that it was overlooked by the publisher.

Such a heavy handed principle would doubtless

protect a few criminal trials. But the price in

terms of the possible inhibition upon public

discussion would be intolerable."

20. As Priestley J.A. pointed out at p.681, the applicability of the Bread Manufacturers principle to the publication of matter prejudicial to the fair trial of criminal charges seems to have been taken for granted in the joint reasons for judgment of Dixon C.J., Fullagar, Kitto and Taylor JJ. in John Fairfax & Sons Pty. Ltd. v. McRae, at p 372.

21. In its ex tempore judgment in Waterhouse v. Australian Broadcasting Corporation [1986] HCA 64; (1986) 61 ALJR 24; 68 ALR 75 this Court did not refer expressly to the Bread Manufacturers principle. In that case special leave was refused in a case in which the applicant sought to restrain the publication of prospectively defamatory or prejudicial matter bearing on his trial. However, at the outset of their judgment, Gibbs C.J., Wilson and Dawson JJ. said:

" In this case the learned primary judge, Young

J., was required to exercise a discretionary

judgment, balancing two principles of great

importance - on the one hand, the need to ensure

that an accused person should not be prejudiced

in his trial, and on the other hand, the need to

ensure that the public discussion of matters of

public concern is not stifled."

22. While the judgment of Jordan C.J. contains a valuable statement of the principles operating in the field of contempt, like any judgment it must be read in context and not with undue concentration on each word used. In this regard I agree with the submission on behalf of the appellants that the words in the judgment at p.249 "an incidental but not intended by-product" should not be elevated to an undue importance. The emphasis in the judgment is on the balance to be struck between competing interests. The last sentence in the passage quoted should not be taken as in some way overriding the need to strike that balance. Rather the last sentence excludes from the balancing process statements which are intended to bring about the likelihood of prejudice. Certainly this is the way the judgment was seen by Owen and Herron JJ. in Ex parte Dawson; Re Australian Consolidated Press Ltd. (1961) SR (NSW) 573; see also Lord Simon in Attorney-General v. Times Newspapers Ltd., at p 319.

23. The point appears more clearly by reference to the passage in the judgment of Jordan C.J. following that already quoted. At pp.249-250 his Honour continued:

" It is well settled that a person cannot be

prevented by process of contempt from continuing

to discuss publicly a matter which may fairly be

regarded as one of public interest, by reason

merely of the fact that the matter in question

has become the subject of litigation, or that a

person whose conduct is being publicly criticised

has become a party to litigation either as

plaintiff or as defendant, and whether in

relation to the matter which is under discussion

or with respect to some other matter .... If,

however, under colour of discussing, or

continuing to discuss, a matter of public

interest statements are published the real

purpose of which is to prejudice a party to

litigation, the contempt is none the less serious

that an attempt has been made to cloak it ...."

24. What Jordan C.J. said about "an incidental but not intended by-product" was said in relation to the facts of the case before him. For his Honour accepted that the articles complained of were not intended to influence the action brought by the bread carter and that any tendency to do so was "purely fortuitous" (at p.251). That is not to suggest that the phrase forms no part of the general principles expressed by Jordan C.J.; clearly it does. It is simply to emphasize the need to read the phrase in its context. So read, there is nothing in what I have said which is at odds with the judgments of the Court of Appeal in Director of Public Prosecutions v. Australian Broadcasting Corporation (1986) 7 NSWLR 588 and in Director of Public Prosecutions v. Wran (1986) 7 NSWLR 616. The emphasis in those judgments is on published matter "directed to the issue of guilt or innocence of the accused in criminal proceedings" which, in the view of their Honours, could "rarely if ever" rely upon public interest as an answer to a charge of contempt.

25. It is true that the Contempt of Court Act 1981 (U.K.) attaches greater importance to incidentalness than do these reasons. Section 5 of the Act reads:

" A publication made as or as part of a

discussion in good faith of public affairs or

other matters of general public interest is not

to be treated as a contempt of court under the

strict liability rule if the risk of impediment

or prejudice to particular legal proceedings is

merely incidental to the discussion."

26. But s.5 operates in the special framework established by the statute, a framework which includes limiting the operation of "the strict liability rule". This concept is defined by s.1 as "the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so": see Arlidge and Eady, The Law of Contempt, (1982), pp.34-35, 99-100. It is not to be assumed that s.5 is intended only to restate the common law and in my view it is not to be taken as a guide to the operation of the Bread Manufacturers principles. As to the application of s.5, see Borrie and Lowe's Law of Contempt, 2nd ed. (1983), pp.123-124.

27. Once it is accepted that the Bread Manufacturers principles apply to a case such as the present in which it is asserted that there was a contempt in relation to pending criminal proceedings, a question then arises whether the publication of a matter of public concern in which the public interest is held to outweigh the possibility of prejudice provides an answer to a charge of contempt, or whether that public interest arises only at the point where the court is considering whether a conviction should be recorded or a penalty imposed.

28. Different views on this matter were expressed by members of this Court in the B.L.F. Case. Gibbs C.J. at p.60 and Brennan J. at pp.175-176 were of the view that the balancing of interests confers a discretion on a court whether to punish a contempt but does not determine whether a contempt has been committed. On the other hand Stephen J. at pp.74-75, Mason J. at pp.95-96 and 98, and Wilson J. at pp.133-137 approached the matter on the basis that the balancing of the two public interests - the fair and proper administration of justice and the preservation of open discussion and free access to information - must be carried out when a court determines whether or not a contempt has been committed. As Murphy J. approached the case, it was not necessary for him to deal with the point. Aickin J. agreed with Wilson J. that the risk of contempt was insufficient to warrant any restrictions on the Royal Commissioner.

29. The approach of Stephen, Mason and Wilson JJ. should, I think, prevail. The notion of a statement constituting a contempt but not necessarily a punishable contempt must give rise to a degree of uncertainty in an area of the law which in any event is not free from difficulty. The distinction between a "technical" contempt and a contempt such as to justify an order against the contemnor was made by Cotton L.J. in Hunt v. Clarke (1889) 58 LJQB 490 and again in The Queen v. Payne (1896) 1 QB 577. It seems to have had its origin in the notion of strict liability for contempt, a notion that goes back at least as far as The St. James's Evening Post Case: Roach v. Garvan [1742] EngR 142; (1742) 2 Atk 469 (26 ER 683). The distinction surfaced again in Attorney-General v. Times Newspapers Ltd., this time in regard to a defence of public benefit. But as Mason J. pointed out in the B.L.F. Case at p 96:

" Although in Times Newspapers the House of

Lords came down in favour of an absolute

prohibition against press pre-judgment designed

to bring pressure to bear on a litigant to

compromise proceedings, in preference to a

'balancing' test or a defence of public benefit,

there has been no suggestion that a similar

prohibition is the appropriate criterion in this

case."

30. Reference should also be made to Davis v. Baillie [1946] VicLawRp 76; (1946) VLR 486. Fullagar J. there drew a distinction between a contempt and a punishable contempt, adding at pp 493-494:

" But often, I think, the Court does not ask itself

two separate questions, but simply and quite

properly, asks itself whether it ought to

exercise its jurisdiction."

31. But Davis v. Baillie was a case in which public interest was mentioned almost incidentally and the decision does not stand in the way of a conclusion that a court must weigh competing public interests when considering whether there has been a contempt of court. See also Attorney-General (N.S.W.) v. John Fairfax & Sons Ltd. (1980) 1 NSWLR 362.

32. Proceedings for contempt of court are proceedings for a criminal offence. It might be thought therefore that such proceedings cannot succeed unless they establish an intention on the part of the person charged to interfere in the administration of justice. But the weight of authority is now firmly against such a view. The conduct of the person charged must be deliberate in the sense that he must have intended to publish what he did. But that is a far different thing. Intention to interfere in the administration of justice has been held to be a relevant consideration, but its existence unnecessary for a conviction.

33. Thus, in John Fairfax & Sons Pty. Ltd. v. McRae, Dixon C.J., Fullagar, Kitto and Taylor JJ. said at p 371:

" The actual intention or purpose lying behind a

publication ... is never a decisive

consideration. The ultimate question is as to

the inherent tendency of the matter published.

But intention is always regarded by the court as

a relevant consideration, its importance varying

according to circumstances."

34. That statement was endorsed by Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ. in Lane v. Registrar of Supreme Court of N.S.W. [1981] HCA 35; (1981) 148 CLR 245, at p 258. See also the B.L.F. Case at p 56 (Gibbs C.J.) and at p 133 (Wilson J.).

35. In the light of these decisions it must be taken as settled law that the absence of intention to interfere with the due administration of justice will not necessarily lead to a conclusion that there was no contempt of court. On the other hand, as this Court pointed out in Lane at p.258:

" A lawful act may constitute a contempt if done

with the intention of interfering with the course

of justice, but will not become a contempt simply

because it was done to achieve some purpose or

further some interest of the person doing it."

36. One aspect is clear enough: the question whether or not a contempt has been committed is one to be determined at the time of publication and not by reference to subsequent events. That much is apparent from Attorney-General for New South Wales v. John Fairfax & Sons Ltd. and Bacon (1985) 6 NSWLR 695, from The Queen v. Pacini [1956] VicLawRp 84; (1956) VLR 544 and from The Queen v. David Syme & Co. Ltd. [1982] VicRp 16; (1982) VR 173.

37. Logically, the first question that arises for determination is whether the statements broadcast by Mr. Hinch did, as a matter of practical reality, have a real and definite tendency to interfere with the due course of justice in relation to the trial of Glennon. Both in the Full Court and in this Court this question was somewhat blurred with a further question which was - even if the statements did have a tendency to interfere with the due course of justice, was there a contempt, having regard to the time at which they were broadcast in relation to any pending proceedings and the circumstance that the references to Glennon were part of a general discussion of child molestation? The terms upon which leave to appeal was granted rather foreclosed the first question against the appellants, leaving for debate whether the matters giving rise to the "further question" provided an answer to the appellants. Although I have used the term "answer", the onus of proof did not at any stage shift to the appellants.

38. If the questions are kept distinct, there can be no doubt that the broadcasts did have a tendency to interfere with the course of justice. The broadcast of 13 November 1985 referred expressly to Glennon's conviction for sexual assault in 1978, his acquittal of charges of rape in 1984 and his "sexual criminal record involving juveniles". As well there was an implication in the sentence "I know the question police are asking is how many other children may have been involved, how many other children may have been too scared over the years to come forward" that Glennon may have been guilty of offences against other children on a number of occasions. The broadcast on 15 November 1985 was more circumspect in what it said about Glennon, the offending remarks being confined to three references to him having been gaoled for indecent assault. The broadcast on 11 March 1986 again spoke of Glennon having been "jailed on an indecent assault charge involving children", of having been charged with sexual assault and gaoled in 1978, and having been acquitted of rape in September 1984. That broadcast also repeated the comment made in the first broadcast, in these terms: "As I said last year, I know the question police have been asking is how many other children may have been involved, how many perhaps (were) too scared to come forward?".

39. These comments were made in the context, so far as the first two broadcasts were concerned, of Glennon having been charged with a series of offences against children and, so far as the last broadcast was concerned, with his having been charged with further such offences. The broadcasts carried with them an implication that Glennon was likely to have committed the offences for which he presently stood charged.

40. The principle that the prosecution may not adduce evidence tending to show that an accused has been guilty of criminal acts for the purpose of leading to the conclusion that he is a person likely from his criminal conduct or character to have committed the offence for which he is being tried was described by Viscount Sankey L.C. in Maxwell v. The Director of Public Prosecutions (1935) AC 309, at p 317 as "one of the most deeply rooted and jealously guarded principles of our criminal law". See also Fullagar J. in Davis v. Baillie at p 496 and Moffitt P. in Attorney-General (N.S.W.) v. Willesee (1980) 2 NSWLR 143, at p 149 where other cases are noted.

41. How relevant then is it to have regard to the likely progress of the charges laid against Glennon? A number of decisions testify as to the importance, in determining whether there has been a contempt of court, of the likely time interval between publication and the trial of the offender. See for instance Waterhouse v. Australian Broadcasting Corporation (in this Court, and in the Court of Appeal (1986) 6 NSWLR 733); Attorney-General for New South Wales v. John Fairfax & Sons Ltd. and Bacon, especially the judgment of McHugh J.A. at pp 709-712; Attorney-General v. News Group Newspapers Ltd. (1987) 1 QB 1, especially the judgment of Sir John Donaldson M.R. at p 16.

42. As Wilson J. pointed out in the B.L.F. Case at p.136:

" It may be that the publication of material which

tends to affect the attitude of witnesses and so

influence their evidence will constitute a

contempt: Times Newspapers Ltd. (1974) A.C., at

p.297. But the tendency must be established."

43. His Honour went on to hold that this had not been done in the instant case. He said that there was uncertainty as to the content and degree of coverage by the media should the Royal Commissioner continue to sit in public, adding:

" In the second place, the growth both in range and

intensity of mass media coverage in modern times

carries with it a greater liability to transience

in its hold on the public mind. What is news

today is no longer news tomorrow."

44. Those remarks and similar remarks in other decisions lend support to the view that the time relationship is a significant factor in considering whether or not a contempt has taken place, in other words in determining whether the publication complained of had a real tendency to affect the administration of justice. And the reason why it is significant is that the question whether a publication constitutes a contempt of court is answered by reference to the reasonable probabilities existing at the time of publication, one of which is the length of time before a relevant hearing may take place: see Jordan C.J. in Ex parte Auld; Re Consolidated Press Ltd. (1936) 36 SR (NSW) 596, at pp 598-599.

45. In the present appeals Young C.J., while acknowledging that contempt must be determined as at the date of publication, said that it did not follow that there must always be an inquiry as to the likely date of trial. His Honour commented:

" It would not be conducive to the fair and proper

administration of justice to make the decision

whether a contempt had been committed or whether

a contempt should be punished depend upon the

trial of an issue raised as to when it was likely

that a particular trial ... might take place."

46. But, in truth, there is no "trial" of that issue. The tendency of a publication, said to amount to a contempt, to affect witnesses and jurors is a matter to be established. A relevant consideration is the likely interval of time before trial because that interval throws light upon the extent to which witnesses and jurors may be affected.

47. Murphy J. did not make a finding as to when any trial of Glennon was likely to take place. This, it would seem, was because his Honour regarded the effect of any likely lapse of time in the case before him to be outweighed by the size of the listening audience to Mr. Hinch's programme, the popularity of talk-back programmes as a source of information and gossip and the dramatic impact of reference to a Catholic priest facing charges involving young persons, having been already convicted of such a charge and acquitted of others. The necessity for the Crown to establish a tendency on the part of the broadcasts to interfere with the due administration of justice, i.e. to interfere with the hearing of charges against Glennon, made relevant the interval of time before his trial was likely to take place. In that regard Nicholson J., in dissent, commented:

" In all the circumstances and having regard to the

evidence given to his Honour, I would think that

the probabilities suggest a gap of between six

and nine months between committal and trial.

This means that at the time Hinch made the

November broadcasts a gap of at least ten months

could have been anticipated before trial.

Because of the laying of fresh charges in March I

would have thought it probable at the time of

Hinch's third broadcast that the committal

hearing would be adjourned for some months which,

again, suggests a gap of at least ten months

until trial."

48. It was for the Crown to establish that in all the circumstances the publications constituted a contempt. Nicholson J. said:

" Whilst there is no doubt that the practice of

referring to the prior convictions of an accused

man should be avoided, every case must be treated

on its own facts, and in this case I could not be

satisfied beyond reasonable doubt that Hinch's

broadcasts had the necessary tendency to

interfere with the fair trial of Glennon.

In my opinion the circumstances of the passage

of time prior to trial, the ephemeral nature of

the spoken word as compared to print or visual

image and the transient effect of these

allegations on the public mind in the midst of a

welter of other allegations against distinguished

and less distinguished members of the community

whether they be judges, politicians, policemen,

doctors, bookmakers or clergymen all militate

against such a finding."

49. This tends to underestimate the unusual features of the case, to which reference has already been made, and the impact of the broadcasts, delivered as they were to an audience of 200,000, about half of whom lived in the area from which jurors would be drawn. It may be that constantly increasing exposure to mass media means that the impact, at least in regard to reports of particular matters, becomes correspondingly fleeting. This is particularly true of something as ephemeral as a radio broadcast. Dicta in earlier decisions, especially those concerned with the written word, must be looked at carefully in the light of dramatically changed conditions. It may be also that earlier decisions have given too little weight to the capacity of jurors to assess critically what they see and hear and their ability to reach decisions by reference to the evidence before them. In this regard the remarks of the Full Court of the Federal Court in Duff v. The Queen [1979] FCA 83; (1979) 39 FLR 315, at p 333; [1979] FCA 83; 28 ALR 663, at p 677 are relevant, as are those of Sir John Donaldson M.R. in Attorney-General v. News Group Newspapers Ltd. at p 16 and those of McHugh J.A. in Attorney-General v. John Fairfax & Sons Ltd. and Bacon at pp 711-712.

50. Nevertheless the finding by the primary judge and by the majority in the Full Court that the broadcasts constituted a substantial risk that Glennon would not receive a fair trial is one that was readily open on the evidence and one with which this Court ought not interfere. The question remains whether, taken in their entirety, the broadcasts were on a subject of legitimate public interest, an interest to which any tendency to interfere with Glennon's fair trial should yield.

51. In my view the Court is required to consider for itself on which side the balance comes down. As suggested earlier, the balancing of interests is the primary thrust of Jordan C.J.'s judgment. The reference to "an incidental but not intended by-product" should not obscure that fact or lead to a situation in which comments having a tendency to interfere with the due administration of justice are saved only if they are incidental to a discussion of a matter of public interest.

52. In the appellants' submissions, the broadcasts were aimed not at the question of Glennon's guilt or innocence of the charges pending against him but at him remaining in charge of the Foundation, which in turn controlled the activities of a number of youth groups, when he was facing a series of charges involving children, had in 1978 pleaded guilty to the indecent assault of a sixteen year old girl and had in 1984 been charged (though acquitted) with offences against a young boy. It was further submitted that the broadcasts were aimed to alert the public, and in particular parents with young children involved in or likely to become involved in the Foundation, of matters that would have a serious impact on any decision relating to continued participation in the Foundation. The broadcasts further emphasized the fact that Glennon had been released on bail with no conditions attached that would preclude him from continued management of the affairs of the Foundation and the further fact that he was actively continuing that involvement and appeared determined to do so.

53. The primary thrust of the broadcasts was, I accept, an expression of concern that a person with Glennon's history and facing a series of charges involving young children should continue to hold office in the Foundation and actively participate in its activities. There was an entirely legitimate purpose in alerting the public, parents in particular, to a situation which they were entitled to have drawn to their attention. Furthermore, it is arguable that the public was entitled to have drawn to its attention the wider question of a person continuing to be associated with youth activities, notwithstanding a conviction for an offence against a young person. The issue of child molestation is one of great and pressing importance to the community.

54. It was, as Nicholson J. pointed out, Glennon's prior conviction and imprisonment that lent weight to the public interest in being informed about him. To have said no more than that Glennon was facing charges and that he was on unconditional bail would not have carried the same message to the parents of the many children taking part in the Foundation's activities as the fact that he had earlier pleaded guilty to a charge of indecent assault on a young girl and had been imprisoned for that offence. But these considerations must in the end be placed in the balance against a precept quite fundamental to our society, that a person charged with an offence is entitled to receive a fair trial. In consequence, so far as it can be achieved, jurors must be allowed to bring to bear an open mind on the decisions they have to make. The Court is not the arbiter of good taste or literary merit but it must consider the entire content of the broadcasts and ask itself whether their prejudicial effect outweighs the public interest they seek to serve.

55. When Lord Diplock, in Attorney-General v. English (1983) 1 AC 116, at p 143 said that the test "is not whether an article could have been written as effectively without these passages or whether some other phraseology might have been substituted for them", he was expressing a view as to the operation of s.5 of the Contempt of Court Act 1981 (U.K.). That is not the approach required by the balancing process as I have described it.

56. It is in the light of these considerations that one must examine the broadcasts. They were directed to alerting the public on a matter of concern to it. But they did so, not only by referring to the charges against Glennon and to his previous conviction, but also to charges of which he was acquitted. Perhaps most seriously of all, the first broadcast referred to other children who "may have been involved" and who "may have been too scared over the years to come forward", a reference that was repeated in the third broadcast. The reference carried a clear implication that Glennon was likely to have committed other similar offences with which he had not been charged. This in turn implied guilt of the offences with which he had been charged. And that is the gravamen of the matter, that the broadcasts not merely alerted listeners to Glennon's unfitness for the position of governing director of the Foundation, but that they prejudiced his chances of obtaining a fair trial by their thinly veiled assertions of guilt. For these reasons the convictions must stand.

57. It is unnecessary to deal with an argument on behalf of the second appellant that certain evidence relating to Glennon was wrongly excluded. Had that evidence been admitted, it could not have affected the result.

58. There is no licence to publish at large about a person facing trial, even if what is said be true. Contempt of court operates to prevent undue interference with the administration of justice, most relevantly here to secure the right of an accused to a fair trial. As the Australian Law Reform Commission pointed out in its Report No. 35 Contempt (1987) para.3, a person will not receive a fair trial

" if the judge, magistrate or jury approaches the

issues at stake in a biased or prejudiced manner,

or if the recollection of witnesses is distorted

by published material relating to the case. The

law of contempt accordingly prohibits

publications which, as a matter of 'practical

reality', have a tendency to prejudice the fair

trial of any case by virtue of influence exerted

on a judge, magistrate, the jury or any witness.

The rules in this area are strictest in their

application to jury trials, which are reserved

for the most serious offences, and where the

liberty of the accused person is generally at

stake. The need to maintain the presumption of

innocence and to shield the jury from allegations

which would not be admitted in evidence in the

courtroom is given high priority."

59. Publication close to trial, a fortiori during the trial itself, is more likely to offend than publication earlier in time. As these reasons seek to demonstrate, a decision whether as a matter of practical reality a publication has a tendency to prejudice the fair trial of a person is a decision to be made in the light of all the circumstances, including the interval of time between publication and any relevant step in the trial process. There are other principles at work and they include the right of the community to be informed on matters touching its welfare. However the notion of public interest has its limitations and in many cases it will not be served by dissemination of information about a person charged with a criminal offence or it must yield to the need to secure a fair trial for such a person. There is a balance which the Court is called upon to strike. It is not an exercise of discretion; it is an evaluation of competing interests against the background that contempt must be established beyond reasonable doubt. As the report of the Law Reform Commission makes clear, there have been criticisms of the way in which the concept of contempt operates in particular cases. But it has a valuable role to play in the administration of justice and it casts an onus upon those in the media, an onus which in any event is dictated by ordinary fairness, to consider carefully the implications of what they say about a person who is facing trial.

60. The appeals should be dismissed.

APPENDIX

" I think by now most regular listeners would know

that my attitude ... and what it is about

poachers in the sanctuary, those who use their

position to prey on the vulnerable, those who use

a position of trust for their own personal gain,

those who use their position of trust and

authority for their own sexual gratification, and

I've talked about it many times on this programme

before.

The doctor who examines a woman for possible

breast cancer and uses that traumatic time, that

fear of a mastectomy to fondle his patient; the

scoutmaster or school teacher, a father figure,

who exploits that trust and molests a scout or a

cub or a school pupil.

The foster home parent or half-way house

superintendent who uses his or her position for

personal sexual gain; the stepfather, the family

friend, the uncle -- poachers in the sanctuary.

The Baptist Minister who abuses his position of

trust and uses his words of wisdom as bait for

troubled birds with broken wings.

It is despicable and when children are involved,

it's even more sickening. Now, I want to go back

to a case -- late yesterday we learned about it

-- we learned of a Catholic priest who allegedly

used his clerical robes as a bait for his flock.

Father Michael Glennon, an ordained Catholic

priest, now calling himself a non-denominational

priest, appeared in the Preston Magistrate's

Court yesterday afternoon charged on numerous

counts of child molestation.

He faced one count of buggery, an offence no

longer on the statutes. It's been replaced by

the offence of sexual penetration, but it does

apply in this case because it applies to the

priest as the offences allegedly were committed

before the law was changed.

Father Michael Glennon was also charged with two

counts of assault while attempting to commit

buggery and nine charges of indecent assault on

teenage boys.

Glennon, from Harold Street, Thornbury, is the

Governing Director of the Peaceful Hand Youth

Foundation and police have said five youths have

made statements, alleging the offences that took

place at the Youth Foundation at a camp called

('Karaglen') at Lancefield during the period from

1975 to 1982.

Police say Glennon was forced to resign from

practising within the Catholic Church after he

was charged with sexual assault and jailed in

1978.

Father Michael Glennon appeared in the Melbourne

County Court in 1978 charged with rape. However,

when he pleaded guilty to indecent assault of a

16-year-old girl, police did not proceed with the

rape charge.

On the indecent assault charge, Father Glennon

was found guilty and sentenced to the two years'

jail with a minimum of 12 months to serve. The

same priest was then charged in the Melbourne

County Court in September of 1984 with two counts

of rape of a 12-year-old boy. On those charges

he was acquitted.

The Father now calls himself a non-denominational

priest. He's been quoted as saying his work in

the Peaceful Hand Youth Foundation is involved

with Aboriginal children. I know the question

police are asking is how many other children may

have been involved, how many other children may

have been too scared over the years to come

forward.

And the question I have to ask, and I'm sure you,

I'm sure that every reasonable, thinking, caring

adult would also ask along with me, how does a

man come to be able to continue to run a youth

foundation with that background? How does a man

continue to be able to take children into his

care and take children in his care to youth

camps, when he has a criminal record, a sexual

criminal record involving juveniles?

Father Glennon was bailed in Preston Court on his

own undertaking with a surety of $2,000 and

perhaps some of the questions will be answered

when he appears again before the Melbourne

Committals Court in April of next year -- the

main question, is he still involved with the

Peaceful Hand Youth Foundation?"

" On the programme on Wednesday morning I posed a

question, a question I know that police are

asking and I said then is a question that I think

all reasonable, thinking adults in Victoria would

be asking, especially parents.

The question is this: how can a priest, a

non-denominational priest, Father Michael

Glennon, how can he continue to hold senior

office in a children's youth organisation after

being jailed on an indecent assault charge?

Now, I posed that question earlier in the week,

as I revealed on the programme that Preston

detectives had charged Father Glennon on 12

counts of molestation of teenage boys, dating

back to 1975.

He appeared in Preston Magistrate's Court last

Tuesday afternoon and has pleaded not guilty to

all charges. Father Glennon is the Governing

Director of the Peaceful Hand Youth Foundation,

an organisation based in Ballarat Street in

Lalor.

It's an organisation incorporated with the

Victorian Government, a voluntary organisation

with six branches, including a young offenders

correction service -- well, having been in jail,

he could give advice on that -- the Images

Theatre Company and the karate club.

Up to 1,000 children, aged six and upwards, are

involved with those clubs. At a meeting, I am

told, on Wednesday night, representatives of the

parents' council, the teachers' council, the

central executive and the black belt karate

council all expressed their unanimous support for

and confidence in Father Glennon.

Glennon will remain as Governing-Director of the

Peaceful Hand Foundation and we have had that

confirmed. We've confirmed that with the

Foundation's Secretary, Mrs. Vicki Dickerson.

That is, despite a jail sentence for indecent

assault, the man will stay in that position.

Father Glennon has told us he has made complaints

to the State Ombudsman and to the Police Bureau

of Internal Investigation. He told Pamela

Graham, and I quote: 'I abhor that police of

Preston CIB have waited so long to act on

allegations made up to 15 months ago without

telling me; I abhor that police did not attempt

to show me any corroboration of ancient charges

dating back to 1975; I abhor the fact that police

confiscated all my personal diaries and the

Foundation's photo albums, videotapes and files

and information that would assist me to say where

I was at what time and with whom,' end quote.

All I can say is it goes back to the question,

the question I said I know police are asking, a

question, as I said, I think all reasonable,

thinking adults will be asking in Victoria, how

can a priest, a non-denominational priest, Father

Michael Glennon, continue to hold senior office

in a children's youth organisation after being

jailed on an indecent assault charge?"

" Late last year on this programme I asked a

question: how can a Catholic priest, now calling

himself a non-denominational priest, continue to

hold senior office in a children's youth

organisation after being jailed on an indecent

assault charge involving children?

The priest is Father Michael Glennon, aged 41, of

Harold Street, Thornbury. He is the Governing

Director of the Peaceful Hand Youth Foundation

based in Ballarat Street, Lalor. It is an

organisation incorporated with the Victorian

Government. In fact, the organisation has

received money in grants from the State

Government.

The Peaceful Hand Youth Foundation, founded by

Father Glennon, has six branches apparently,

including a Young Offenders Correction Service,

the 'Images' Theatre Company and the Karate Club.

Up to a thousand children, aged six and upwards,

are involved in the clubs. The foundation runs a

camp for kids at 'Karaglen' at Lancefield.

Glennon was charged with sexual assault and

jailed in 1978. He appeared in Melbourne County

Court in 1978, charged with rape and indecent

assault. Police did not proceed with the rape

charge, and on the indecent assault charge he was

found guilty and sentenced to two years' jail,

with a minimum of 12 months to serve.

The same priest was then charged in the Melbourne

County Court in September '84 with two counts of

rape of a 12-year-old boy, and on those charges

he was acquitted.

As I said last year, I know the question police

have been asking is how many other children may

have been involved, how many perhaps (were) too

scared to come forward?

And the question I have to ask -- and I'm sure

you, every reasonable-thinking adult asks along

with me -- how does a man come to be able to

continue to run a youth foundation, to take

children into his care in youth camps?

Now, in November, at a meeting ... at a meeting

of representatives of the Parent's Council, the

Teachers' Council, the Central Executive and the

Black Belt Karate Council, all expressed their

unanimous support for Glennon, and the Foundation

Secretary, Mrs. Vicky Dickerson, confirmed that

Glennon would remain as Governing Director of the

Peaceful Hand. Mrs. Dickerson, it turns out,

happens to be Mr. Glennon's cousin.

And the footnote, and where all of this is

leading to this morning, last Friday Catholic

priest Father Michael Glennon, founder and

Governing Director of the Peaceful Hand Youth

Foundation, was charged with rape and indecent

assault.

Glennon was charged with one count of rape and

two counts of indecent assault. He was granted

bail on his own undertaking to appear in the

Melbourne Committals Court on Tuesday, April 8.

My original question remains."

GAUDRON J. Mr Derryn Hinch ("the first appellant") is a radio journalist. He has a regular programme on Radio Station 3AW in Melbourne. The station is owned and operated by Macquarie Broadcasting Holdings Limited ("the second appellant"). Each of the appellants was convicted on two charges of contempt of court. The first charge related to two broadcasts made on 13 and 15 November 1985. The second charge related to a broadcast made on 11 March 1986. The texts of those broadcasts are annexed to the judgment of Toohey J. The Full Court of the Supreme Court of Victoria (Young C.J., Kaye J., with Nicholson J. dissenting) upheld the convictions, but reduced the penalties imposed at first instance by Murphy J. The present appeals are limited, by the terms in which special leave to appeal was granted, to a consideration of "the effect of the observations of Chief Justice Jordan in Ex-parte Bread Manufacturers Ltd.; Re Truth & Sportsman Limited and Another (1937) 37 SR NSW 242 and the views expressed by the members of this Court in Victoria v. Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; 152 CLR 25 ...".

2. The broadcasts dealt with the subject of child molestation. They examined the appropriateness of employing a person who has been convicted of a sexual offence in a position of authority in an organization providing activities and pastoral care for young persons, and also addressed the question of that person's continued employment pending the hearing of charges of further sexual offences against young people. However, the broadcasts had a particular focus. That focus was Father Michael Glennon, the Governing Director of the Peaceful Hand Youth Foundation Pty Limited. Father Glennon had been ordained as a Catholic priest, but was not at the time attached to any parish and held no other position in the Catholic Church. He described himself as a "non-denominational priest".

3. On 12 November 1985, Father Glennon appeared in Preston Magistrates' Court charged with a number of sexual offences against teenage boys. He was remanded on bail pending committal proceedings which were listed to be heard in Melbourne Magistrates' Court on 8 April 1986. In his programme on 13 November 1985, the first appellant reported these matters, and in that context revealed that:

"Father Michael Glennon appeared in the Melbourne

County Court in 1978 charged with rape. However,

when he pleaded guilty to indecent assault of a

16-year-old girl, police did not proceed with the

rape charge.

On the indecent assault charge, Father Glennon was

found guilty and sentenced to the two years' jail

with a minimum of 12 months to serve. The same

priest was then charged in the Melbourne County

Court in September of 1984 with two counts of rape

of a 12-year-old boy. On those charges he was

acquitted."

"... how many other children may have been

involved, how many other children may have been too

scared over the years to come forward."

"... how does a man come to be able to continue to

run a youth foundation with that background? How

does a man continue to be able to take children

into his care and take children in his care to

youth camps, when he has a criminal record, a sexual

criminal record involving juveniles?"

and

"... the main question, is he still involved with

the Peaceful Hand Youth Foundation?"

4. The first appellant returned to this subject in his broadcast of 15 November 1985. He again reported that Father Glennon had been charged "on 12 counts of molestation of teenage boys, dating back to 1975." On four occasions during the broadcast, reference was made to Father Glennon having previously served a gaol sentence. The last reference was contained in the question:

"... how can a priest, a non-denominational priest,

Father Michael Glennon, continue to hold senior

office in a children's youth organisation after

being jailed on an indecent assault charge?"

5. On 7 March 1986, Father Glennon was charged with further counts of rape and two counts of indecent assault. The charges related to events alleged to have occurred between July and November 1982. He was granted bail on his own recognizance to appear in the Melbourne Magistrates' Court on 8 April 1986, the date fixed for the committal hearing of the offences with which he had been charged on 12 November 1985. This prompted the first appellant to make a third broadcast, in which he again canvassed Father Glennon's previous conviction and acquittal and in which he again posed a number of questions:

"... I know the question police have been asking is

how many other children may have been involved, how

many perhaps (were) too scared to come forward?"

and

"... how does a man come to be able to continue to

run a youth foundation, to take children into his

care in youth camps?"

6. The appellants contend that they are not guilty of contempt, because the first appellant was engaged in the discussion of a matter of public importance. They rely on the statement by Jordan C.J. in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd ("Bread Manufacturers") (1937) 37 SR (NSW) 242, at p 249 that:

"It is of extreme public interest that no conduct

should be permitted which is likely to prevent a

litigant in a Court of justice from having his case

tried free from all matter of prejudice. But the

administration of justice, important though it

undoubtedly is, is not the only matter in which the

public is vitally interested; and if in the course

of the ventilation of a question of public concern

matter is published which may prejudice a party in

the conduct of a law suit, it does not follow that

a contempt has been committed. The case may be one

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."

7. That statement was considered by this Court in John Fairfax & Sons Pty Ltd v. McRae [1955] HCA 12; (1955) 93 CLR 351 and approved in Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F. Case") [1982] HCA 31; (1982) 152 CLR 25, at pp 59-60, 95, 133-134.

8. Two questions arise in the present appeal. Does the principle enunciated in Bread Manufacturers apply to conduct which prejudices criminal proceedings? If so, how is the principle to be applied? The answers to both questions depend, in my view, upon the acceptance of the proposition that the dissemination of information relevant to the workings of an open, democratic society may, in both abstract evaluation and in relation to particular cases, take precedence over the public interest in protecting the administration of justice from the risk of interference. In Attorney-General for New South Wales v. John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695, McHugh J.A. noted (at p 714) that the public interest in open justice usually takes precedence over the public interest in "the fair and unprejudiced trial of criminal and civil issues." Thus it is not contempt to publish a fair and accurate report of bail proceedings, notwithstanding that the report may involve matters which could cause prejudice to the subsequent trial of the person making the bail application: see the B.L.F. Case, per Wilson J. (at p.132) and Minister for Justice v. West Australian Newspapers Ltd (1970) WAR 202, per Jackson C.J. (at p 207). McHugh J.A. also observed (at p 714) that "it can hardly be argued that a fair and accurate report of proceedings of Parliament, if made in good faith, constitutes an unlawful interference with the course of justice." He added that "(t)he public interest in the administration of justice must also give way on occasions to the public interest in the discussion of public affairs and the provision of information which is vital to the working of an open and democratic society ...". In those passages, McHugh J.A. pointed to matters of public interest which I would respectfully adopt as illustrative (if not necessarily exhaustive) of matters which take precedence over the public interest in protecting the administration of justice from risk of interference. I would identify such matters as the maintenance of our democratic processes, and the maintenance of a free and open society, the latter concept including the open administration of justice. These are matters of fundamental importance. Their nature is such, in my view, that in appropriate circumstances they may outweigh the public interest in protecting the administration of justice from risk of interference, even in relation to criminal trials. For this reason, I am of the view that the principle in Bread Manufacturers extends to conduct which constitutes a risk of interference to criminal trials.

9. There has been some uncertainty as to the manner in which the principle in Bread Manufacturers should be applied. In the B.L.F. Case Gibbs C.J. (at p.60) rejected an approach which would allow to a court "a discretion to weigh one consideration against another, and to make a discretionary judgment as to whether a contempt has been committed or was likely to be committed". The Chief Justice took the view that the balancing of competing public interests "is done by the law in formulating the principle to be applied, and not by the court in deciding a particular case". On the other hand, Stephen J. (at pp.74-77), Mason J. (at pp.98-104) and Wilson J. (at pp.133-137) all seem to have accepted that where a question of public interest was raised, the Court was required to weigh that interest against the public interest in protecting the administration of justice from risk of interference. Brennan J. (at p.175) stated that "(t)here is a distinction between a technical contempt and a contempt which moves the court to action, either to enjoin a threatened contempt or the continuance of a contempt or to punish a contempt." His Honour took the view that it was in relation to the question whether the conduct should be the subject of a court order, that a court was required to balance the competing public interest "in preventing interference with the due course of justice" and in "permitting public discussion of matters of public interest". Murphy J. did not find it necessary to consider this issue, and Aickin J. (at p.119) limited his consideration of this question to expressing his agreement with the observations of Wilson J. relating to the degree of risk posed by the conduct there under consideration.

10. The issue in the B.L.F. Case was the restraint of public inquiry by a Royal Commissioner under Royal Commissions issued by the Commonwealth and the State of Victoria. It was claimed that the inquiry, with its attendant publicity, constituted a risk of prejudice to proceedings pending before the Federal Court of Australia. The context of the issues under consideration in the B.L.F. Case makes it clearer that it is not simply freedom of speech, or discussion, but more properly, freedom of information, that enters into competition with the public interest in protecting the administration of justice from risk of interference. As was observed by Mason J. (at p.98):

"The remarks of Jordan C.J. and more recently of

Lord Scarman stress the overriding importance of

freedom of discussion and speech to which should be

added the equal importance of the public having

access to information which it has a legitimate

interest in knowing. Where the alleged contempt

consists of newspaper discussion or report it is

this public interest that is weighed in the balance

against the public interest in maintaining the

integrity of the administration of justice by

taking such steps as may be necessary to protect it

from interference. In weighing the competing

factors that arise in that situation ... weight

must be given to freedom of speech, discussion and

information. Without information there can be no

meaningful discussion." (See also Stephen J. at

p.77.)

11. I would identify the public interest that is raised by the appellants in this case as the public interest in obtaining information. This interest is maintained and realized by, inter alia, freedom of speech and freedom of discussion. But the public interest in obtaining information is not an interest of constant value. Its value varies according to the subject-matter of the information, and its relevance to other heads of public interest. Thus in Bread Manufacturers, Jordan C.J. said that the public interest in the administration of justice may have to yield to "other and superior considerations", of which he instanced "the ventilation of a question of public concern" and "(t)he discussion of public affairs and the denunciation of public abuses, actual or supposed". Conduct engaged in for the furtherance of these "other and superior considerations" does not constitute contempt, notwithstanding its consequential risk of interference to the administration of justice, if the risk is the "incidental but not intended by-product" of that conduct. The words "incidental but not intended by-product" are to be understood in the light of established principle that intention is never decisive of whether or not a contempt has been committed: John Fairfax & Sons Pty. Ltd v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p 371; Lane v. Registrar of Supreme Court of N.S.W. [1981] HCA 35; (1981) 148 CLR 245, at p 258; the B.L.F. Case at pp 56 and 133. Conduct referable to "other and superior considerations", will not be contemptuous, if done with the intention of, and as an incident of, furthering those "other and superior considerations". But the protection afforded to conduct referable to "other and superior considerations", may be lost if the occasion is used for some different purpose, in the same way that improper purpose may defeat qualified privilege as a defence to the publication of defamatory material. Thus the first step in the application of the principle in Bread Manufacturers is to identify the public interest which is raised in competition with the public interest in protecting the administration of justice from risk of interference, and thereafter to evaluate the competing public interests, not as a matter of discretion, but as a question of law, to determine which public interest takes priority in the circumstances. If in that balancing process a public interest is identified which takes precedence over the public interest in protecting the administration of justice from risk of interference, or which, in the particular circumstances, takes precedence over the "likelihood of prejudice", only then is it relevant to consider whether the risk of interference is the "incidental but not intended by-product" of that conduct. Where proceedings are instituted for punishment of conduct which is referable to a superior public interest, the moving party bears an onus of establishing beyond reasonable doubt that the risk of interference was not the "incidental but not intended by-product" of that conduct as, for example, by showing that the conduct was engaged in for an ulterior purpose, or that information imparted was extraneous to the subject-matter of the public interest.

12. In the present case the public interest to which the appellants relate their conduct is the public interest in disseminating information on the subject of child abuse, and the risk to children consequent upon the occupation in positions of authority and influence in youth organizations by persons convicted and/or charged with sexual offences against young people. That is a public interest which may (other relevant factors being established) outweigh the public interest in the individual's right to privacy, in so far as that right exists, and to reputation. However, the public interest identified by the appellants is of a different order from those great and fundamental matters touching the maintenance of our democratic processes, and the maintenance of free and open society, which matters may, even in the abstract, take precedence over the public interest in protecting the administration of justice from risk of interference. The public interest in the integrity of the criminal justice system also is a matter of fundamental importance. Notwithstanding that some offences are punishable summarily and that on some occasions an accused person may waive his or her right to trial by jury, the law regards as fundamental to the preservation of the rights and freedoms necessary for the maintenance of an open and democratic society that a person should not be convicted of a serious criminal offence save by the verdict of a jury given after a fair trial upon the evidence presented at that trial. In the B.L.F. Case, Mason J., commenting on the administration of criminal justice and the dangers of trial by media, said (at p.99):

"In such a case the paramount public interest is

that of maintaining the administration of justice

free from prejudice and interference. The

countervailing public interest - freedom of

discussion - is exclusively related to the guilt or

innocence of the accused, the issue to be

determined at the trial. In this situation freedom

of discussion has no independent value and is

therefore readily subordinated to the public

interest in the administration of justice."

13. The principle in Bread Manufacturers does not restrict the balancing operation to matters of public interest in the abstract. It allows the balance to be struck in relation to "the possibility of prejudice", a consideration which includes the degree of risk posed by the impugned conduct. That balance may favour a public interest which may be, in abstract terms, of a lesser order than the public interest in protecting the administration of justice, because it has particular significance in the circumstances. Thus, for example, the balance may favour a competing public interest of a lower abstract order, if the risk, though real, is limited by reason that the information is general in nature, not directed to the accused person or the offence charged. So too, that public interest may be favoured if the manner and extent of publication are such that any prejudice can readily be overcome. Whilst it is incumbent upon the party moving for the punishment of conduct said to constitute contempt to establish beyond reasonable doubt that the conduct poses a real risk to the administration of justice, the question whether the competing public interest outweighs the degree of risk established is a question of law.

14. It is within the context of the balancing of the degree of risk and the public interest in the dissemination of the information the subject of the broadcasts that there falls for consideration submissions made on behalf of the appellants as to the probable delay between the broadcasts and the date of trial. Nicholson J. held that the probable delay was a period of 6-9 months. I see no reason to doubt the accuracy of that finding. It was also submitted that the non-permanent nature of the broadcast medium was a factor to be taken into account, and reliance was placed on observations as to the transient nature of certain publications by Wilson J. in the B.L.F. Case, at p.136.

15. In considering these submissions it is necessary to have regard to the nature of the information revealed in the broadcasts. Whilst it may be accurate to describe the radio medium as transient, the nature of the subject-matter discussed, the references to Father Glennon's ordination in the Catholic Church, and to his previous conviction of a sexual offence, all suggest that the scope of even a single broadcast addressed to these issues would have prejudicial effect enduring for a very considerable period of time. The effect was intensified and amplified by the repetition of the prejudicial material in the subsequent broadcasts which made reference to the previous broadcast or broadcasts. In these circumstances I do not think it could with any confidence be asserted that, even though the broadcasts constituted a real risk to the administration of justice, that risk was diminished either by the nature of the medium employed or by the probable delay between the broadcasts and the date of trial, to the extent that any balancing of the public interests could favour the public interest in the subject-matter of the discussion in which the first appellant was engaged.

16. There is a further and more important consideration. The disclosure of the previous conviction of a person facing a criminal trial is regarded as constituting a serious risk to the administration of criminal justice, for as Moffitt P. said in Attorney-General (N.S.W.) v. Willesee (1980) 2 NSWLR 143, at p 150:

"The popular view of the correlation between

persons guilty of committing present crimes and

those who have committed earlier crimes, leads to

the popular and deeply rooted belief that it is

more likely that an accused person committed the

crime charged, if he has a criminal record, and

less likely if he has no record."

17. Not only was the revelation of his previous conviction likely to induce the view that Father Glennon was likely to have committed the offences the subject of the pending charges, that likelihood was reinforced by the insinuated suggestion that Father Glennon was guilty of other like offences, including offences in respect of children who had been "too scared to come forward". Taken together these remarks trenched directly on the question of Father Glennon's guilt of the charges pending. Where the impugned conduct goes directly to the question of guilt, it trenches at the very heart of the public interest in ensuring that no person is convicted of a criminal offence save by verdict given after a fair trial on the evidence given in that trial. In that situation a balancing process which merely weighed a lesser public interest against the "possibility of prejudice" would leave out of account a public interest which is fundamental to our rights and freedoms, and which is jeopardized by the conduct sought to be justified by reference to a lesser public interest. A canvassing of guilt could only be justified on the principle in Bread Manufacturers, if it were referable to a public interest superior to that of ensuring the integrity of the administration of criminal justice. As the public interest to which the broadcasts were referable does not take precedence over the public interest in protecting the administration of criminal justice from risk of interference, it is neither necessary nor relevant to consider whether it was established beyond reasonable doubt that the risk which the broadcasts created was incidental but not intended.

18. I would dismiss the appeals.

ORDER