Doyle, John --- "The Courts and the Media: What Reforms are Needed and Why" [1999] UTSLawRw 5; (1999) 1 University of Technology Sydney Law Review 13

Media Prejudice During a Criminal Jury Trial: Stop the Trial, Fine the Media, or Why Not Both

• Introduction: The Legal System's Two "Big" Responses to Prejudice During a Trial
• A Fine for the Media to Pay Even Though the Trial is Not Stopped
  • (a) Cases where there was evidence before the trial judge that the jury probably or definitely did not encounter the publicity
  • (b) Cases where the trial judge made no specific finding as to whether the jury encountered the publicity
• No Liability (And So No Fine) For the Media Even Though the Trial Was Stopped
• The Issue of Admissibility
• Conclusion

Introduction: The Legal System's Two "Big" Responses to Prejudice During a Trial

When prejudicial publicity appears during a criminal trial, either or both of two major steps may be taken.

First, the judge may give consideration, usually on application by one or more parties, to stopping the trial and discharging the jury. He or she may decide to examine the jurors as to whether they have encountered the material and if so whether they have been influenced by it.[2] The jury should be discharged if in all the circumstances this is necessary in the interests of ensuring a fair trial.[3] In resolving this issue, the judge should bear in mind that if the trial continues he or she may give an instruction to the jurors (or repeat a prior instruction) that they must put out of their minds all publicity about the trial. A trial judge's decision not to abort the trial may constitute grounds for appeal against a verdict of guilty, but courts of criminal appeal must "accord full weight to the position of the trial judge",[4] in whose discretion the matter lies.

Alternatively, or in addition, the Attorney-General, the Director of Public Prosecutions or some other appropriate party[5] may instigate contempt proceedings against the media organization which published the material. Other individuals (such as an editor or a reporter) who are responsible for the publication may also be made defendants. If liability is proved, the normal penalty imposed is a fine. With a few significant exceptions, the criterion of liability (which must be proved beyond reasonable doubt) is, as formulated by the High Court in Hinch v Attorney-General for Victoria,[6] that the publication must have had a "real and definite tendency", as a "matter of practical reality" to "preclude or prejudice the fair and effective administration of justice" in the relevant trial.[7] Mason CJ, in that case, preferred the phrase "substantial risk of serious (or real) interference", adding however that this version may not in fact differ significantly.[8]

In preparing this paper, I have investigated (so far as I could identify them) the criminal cases in Australia since 1980 in which:

• allegedly prejudicial material has been published in the media after the jury has been empanelled; and
• in consequence, discharge of the jury has been sought, or at least given consideration, within the trial, and contempt proceedings have been instituted against the media publisher(s); and
• either the jury has in fact been discharged or one or more publishers have been found guilty of contempt or both these things have occurred.

As far I can tell, there have been 21 cases, each involving two sets of proceedings (the criminal jury trial and the contempt proceedings), which fit this pattern.

It seems logical, at least at first sight, that if material put out by a media publisher during a criminal trial is sufficiently prejudicial to warrant an order discharging the jury, the publisher (if prosecuted) should usually also be convicted of contempt. The converse seems logical also: that is, if ultimately the publisher is convicted, the trial should usually have been stopped. The common concern underlying both these judicial measures is that of avoiding any significant risk that jury verdicts are improperly influenced by publicity.

An observation of Brennan J in the High Court case of R v Glennon[9] may seem to contradict this. He said that "it does not follow that, where a punishable contempt of court has been committed, the trial must be aborted". A reading of the surrounding passage suggests, however, that by "aborted" he meant "stayed indefinitely". The relevant issue of principle before the High Court was whether the fact that pre-trial publicity adverse to an accused person--in this instance, some notorious broadcasts by Derryn Hinch--has been held in contempt should more or less automatically imply that a subsequent conviction must be overruled on fairness grounds or indeed that no fair trial of the accused can ever occur. The majority Justices in the case rejected this proposition.[10] Mason CJ and Toohey J indicated in their joint judgment that a major reason for accepting divergent outcomes--that is, that there might be contempt liability, but no overriding of the jury's verdict of guilty and no permanent stay--was one of timing. Contempt liability was to be assessed as at the time of publication, which could be well before the trial began, whereas the fairness of the trial proceedings leading to a guilty verdict would be assessed as at the time of trial and the grounds for a permanent stay at the time when it was applied for.

This point about timing is however irrelevant to the situation which I am discussing, because the time of publication and the time when the issue of aborting the trial must be resolved are virtually the same. Accordingly, the High Court's observations in Glennon do not, in my submission, preclude suggesting an assumption of convergence in cases of publicity during the trial. Unless some clear reason for divergence can be seen, the two measures which I am discussing--stopping the trial and fining the media--should either occur together or should not occur at all.

Actually, however, in the 21 cases since 1980 which I have examined, there have been only eleven "convergence cases", that is, cases in which publicity during the relevant criminal jury trial has both caused the trial to be aborted and led to a contempt conviction.[11] There have been as many as ten "divergence cases", which is just under 50 per cent of the total.

Is such a high proportion justified? What, if anything, justifies divergence? What, if anything, should make convergence more or less mandatory? In none of these ten cases were these questions directly addressed. Instead, following the trend of the High Court's observations in Glennon,[12] the judges hearing the contempt proceedings merely indicated that contempt liability depends on different principles to those governing any application for discharge of the jury.[13] The trial judges hearing these applications were of course not concerned to determine contempt liability: at most, they announced their intention to refer the matter of contempt to an appropriate prosecuting authority.[14]

A Fine for the Media to Pay Even Though the Trial is Not Stopped

(a) Cases where there was evidence before the trial judge that the jury probably or definitely did not encounter the publicity

In the contempt proceedings, the newspaper proprietor pleaded guilty, bypassing any submission that there was no contempt because in the circumstances there was no possibility that the jury could have been influenced by the article. Bollen J stated that the contempt was a "very serious" one as in his view the jurors would have had to be discharged if the article had been published while they had access to it. But having regard to the plea of guilty and to the "moderate" nature of the contempt prosecutor's submissions, he imposed only a "small" fine of $10,000 plus costs.

In the remaining three cases in this sub-group, there was good reason to believe that the jury was not exposed to the publicity. At the criminal trial involved in Registrar of the Court of Appeal v John Fairfax Group Pty Ltd,[16] the judge put written questions on this issue to the jury, requiring its answers under oath pursuant to the Jury Act 1977 (NSW), s 55D. He was satisfied that the prejudicial material within the offending newspaper article had not come to the jury's notice, and therefore declined to stop the trial. In his judgment in the contempt proceedings, Sheller JA referred to the principle that the presence or absence of actual prejudice was irrelevant to liability. Mahoney JA invoked the analogy of "the driver on a public road who must take care not to injure those in his way". The court found the publisher liable, imposing a fine of $75,000 plus costs (a further fine of $1,000 was imposed on the journalist who prepared the offending article). Although substantial, this fine is well below the record in sub judice cases in NSW, which stands at $200,000 plus costs.

The contempt proceedings in R v David Syme & Co Ltd[17] arose out of a trial in which the appellate proceedings are reported at length as Zampaglione.[18] This report shows that after the publication of the newspaper article later found to be in contempt, the trial judge declined to abort the trial, which had been in progress for some six or seven weeks, because he believed that the jury had been attentive, that its mind would be fully focused on the voluminous evidence and that the detriment occasioned to the witnesses (some of whom were under police protection) and the public purse would be considerable. In his report to the Court of Criminal Appeal, he added two further reasons: (a) at the time when he made this ruling, he believed the Crown case to be "overwhelmingly strong" and (b) his tipstaff had subsequently gleaned from some of the jurors (who for other reasons were locked up for the rest of the hearing) that none of them had come across the article.

In his contempt judgment in Syme, finding the publisher guilty, Marks J did not refer to these findings of the trial judge (he may not have been aware of these last two matters, as his judgment preceded that of the Court of Criminal Appeal). He merely stated the well established principle that "[t]he tendency of the publication must be judged as at the time of publication and is not determined by the fact that for some reason no harm has resulted".[19] He rejected the publisher's defence that it did not actually know of the criminal trial, holding that this was on account of its gross negligence. The penalty which he imposed, a fine of $75,000 plus costs, is largest on record in Victoria (it has been equalled in one subsequent case, as mentioned below).

In the last case in this sub-group, R v Pearce,[20] the prejudicial material, which in contrast to the previous three cases favoured the accused, appeared in a television news programme broadcast only about 45 minutes after the jury had left the court for the day. Jurors would not have encountered it unless they had travelled home quickly and turned out on their TV sets, or had been told about it. Counsel for the prosecution drew it to the trial judge's attention, but neither he nor defence counsel applied for discharge of the jury.[21]

In the contempt proceedings, Malcolm CJ (with whom Pidgeon and Rowland JJ agreed) said that "there could not have been a strong likelihood" that the jury had encountered it and that this was relevant to "the gravity of the contempt".[22] But he rejected the argument of the defence that the prosecution was obliged to prove actual communication to the jury, because of having formulated the allegation of contempt in terms of a tendency to influence the jury to acquit "by communicating to them as members of the public". He held instead that the court must be:

satisfied beyond a reasonable doubt that the publication is of a character which might be communicated to members of the jury, and so interfere with the due consideration of justice. In other words it is necessary to be satisfied beyond a reasonable doubt that the consequence might follow as a matter of practical reality.[23]

The television station, the programme producer and the person (a State Government Minister) whose statement in a press conference constituted the prejudicial material were found guilty of contempt. They were ordered between them to pay the costs of the contempt proceedings, but no formal penalty was imposed.

The judgments in these four contempt cases show divergent attitudes to the significance of the trial judges' findings that the jury did not, or probably did not, encounter the offending publicity. It seems to me that underlying these divergences is a crucial contradiction within the accepted test of liability for sub judice contempt. This test speaks first of a "real and definite tendency" to prejudice the relevant trial, suggesting that this relatively abstract concept of a "tendency" inherent in the publication is the key element in liability. But the later qualifying phrase, "as a matter of practical reality" shifts attention to the actual circumstances of the publication, including the factual likelihood of its reaching the attention of the jury. The Mason formulation of "substantial risk of serious (or real) prejudice" does this too.

In contempt cases involving material published before the relevant trial, this second element has at times been prominent. In Attorney-General for NSW v John Fairfax & Sons and Bacon,[24] for instance, the fact that the defendant newspaper had a relatively small circulation in the region from which the jury in the relevant trial would be drawn was a significant factor in the New South Wales Court of Appeal's finding that no contempt had occurred. Yet in the first two of these four cases of publicity during trial which I have just outlined, the "practical reality" of the jury's lack of contact, or probable contact, with the publicity did not, it would seem, matter greatly to the court hearing the contempt. In the third, Syme, the judge was seemingly unaware of it. That this should have happened for purely procedural reasons seems unfortunate.

In the South Australian Advertiser case, the issue was bypassed because the defendant publisher pleaded guilty, letting slip the opportunity to argue that because the jury had been locked up overnight and their access to newspapers was controlled, publication of the article was, in terms of "practical reality", highly unlikely to cause harm. In Syme, Marks J's only brief reference to the issue whether the jury encountered the publicity emphasised the "tendency" element in the test of contempt liability. He did not refer to the judge's decision to proceed with the trial as a factor which might mitigate the penalty,[25] although the converse situation of a jury being discharged has subsequently been treated as a ground for increasing a contempt fine.[26] He saw no contradiction between the judge's decision not to abort the trial and his own decision to impose a record fine. The John Fairfax judgments displayed a similar pattern of responses, though by New South Wales standards the penalty was a good deal less serious.

Only in the fourth case, that of Pearce, did an argument based on the "practical reality" of the jury not coming into contact with the publicity cut much ice. While it did not protect the publisher from a finding of liability, Malcolm CJ's statement of principle placed the onus on the contempt prosecutor to prove beyond reasonable doubt that the jury "might" have seen the programme or been told about it. According to Mason CJ"s alternative formulation of the basic test, as noted above, this would presumably mean that there should have been a "substantial risk" of this happening. Also, appropriately in my view, Malcolm CJ treated the absence of any "strong likelihood" of jury exposure to the programme as a mitigating factor in considering any penalty.

On the major issue of liability in this context, I consider Malcolm CJ's approach to be preferable to that of the other cases. It does not exonerate the publisher from liability merely because the contempt prosecutor cannot prove affirmatively that the jury encountered the publicity. But if, as arguably occurred in the Advertiser case, it was clear that the jury could not have done so because they were isolated from contact with media output, the publisher would not be liable.

I am interpreting Malcolm CJ's statement as meaning that what matters is the objective likelihood, as at the time of publication, of the jury encountering the publicity, not the degree of probability which the relevant members of the publishing organization might have estimated (if they had thought about the matter) in the light only of the circumstances which they knew or should have known. This must surely be correct. To adapt the analogy to sub judice contempt suggested by Mahoney JA in the John Fairfax case,[27] if a driver on a public road with a speed limit of 100 km/h is in fact driving at this speed, she does not become guilty of dangerous driving by virtue of excessive speed merely because her speedometer was overstating her speed and she therefore thought it was 140 km/h. The alternative interpretation imports a strong element of fault into what according to the authorities is a species of contempt based on strict liability.[28]

(b) Cases where the trial judge made no specific finding as to whether the jury encountered the publicity

This pattern of events may raise the concern that judicial reluctance to incur the costs and inconvenience of aborting a trial could have led to a suspect verdict, in the light of a finding in the associated contempt proceedings that the jury may well have been exposed to publicity which was sufficiently prejudicial to sustain a contempt conviction. In the last of these three cases, for instance, the trial judge described the relevant newspaper article about the accused, Brian Quinn (who was at the time giving evidence), as "absolutely appalling" and he agreed with the epithets "woefully inaccurate", "malicious" and "poisonous" suggested by defence counsel. In his contempt judgment, Gillard J used the phrase "character assassination on a grand scale" and he specifically found that "there was a real possibility that the article did come to the attention of a juror". Describing the contempt as "serious", he imposed fines of $75,000 (the record figure in Victoria, as already mentioned) plus costs on Nationwide News and $10,000 on the journalist responsible. Yet the trial, which at the time of publication was in its 31st day, was not aborted. The matter was considered, but no formal application for discharge was made.

Alternatively, of course, the decision to continue the trial in these circumstances may be warranted because the contents of the publication are thought not to raise a sufficient risk of influence, or because, as the Syme case illustrates, factors such as the judge's estimate of the strength of the Crown's case appear to justify continuance. But if no such factors are apparent, how can a contempt conviction be justified?

On any view, where there is reason to believe that the jury may have come into contact with the publicity, contradictory outcomes of this nature will often be difficult to reconcile.

No Liability (And So No Fine) For the Media Even Though the Trial Was Stopped

In two of them, an established principle of contempt law provides a ready explanation. In Registrar, Court of Appeal v Willesee[32] and Sun Newspapers Pty Ltd and Murray[33] a television broadcast and a newspaper article (respectively) were held to have the requisite tendency to prejudice the relevant jury trial, which was aborted in consequence. But they did not attract contempt liability by virtue of the superior public interest in dissemination of information about, and public discussion of, the general matters of public importance with which they dealt.[34]

The third case is the very recent one of Attorney-General for NSW v Television and Telecasters.[35] Here, an item in an evening television news programme informed viewers that, following an incident during a criminal trial that day leading to immediate removal of the jury, defence counsel had made an unsuccessful application for the trial to be aborted. At the time of the incident, the jury would have realized simply that some sort of application had been made in their absence. If however the broadcast that evening came directly or indirectly to their notice they would have discovered what the application was for. For this reason, on the next day, the trial judge held, pursuant to a second application, that the trial should be aborted.

Contempt proceedings against the broadcaster were, however, unsuccessful. Greg James J, invoking Mason CJ's formulation in Hinch (see above), considered that for the jury to obtain this information did not create any "substantial or real risk of serious prejudice to a fair trial". He could not see that it would influence any juror one way or the other. He stressed that it was not for him to express a view on the trial judge's decision to abort the trial. His judgment suggests, however, that he may have thought it unnecessary.

An alternative explanation for divergence in a case like this may be that even before the prejudicial publication occurred the trial judge had concerns about the fairness of the trial, and the publication, though not particularly prejudicial in its own right, was, in effect, the "last straw". In such a case, it would seem appropriate for this to be explained in the judge's reasons for discharging the jury.

The Issue of Admissibility

As I interpret Greg James J's ruling, it was simply that for the purposes of the contempt case before him the tendered material relating to the termination of the criminal trial was not relevant and was therefore inadmissible. He did not seek to establish a general rule that similar material from the transcript of an aborted trial should always be inadmissible in associated contempt proceedings. But if he did, I would submit that such a rule would be unfortunate, for reasons that should be clear from this paper. If for instance the criminal trial is not aborted because, as occurred in the Adelaide Advertiser case, the judge finds that the jury was shielded from the publicity, this should be admissible in the contempt proceedings because, according to my arguments, it should provide a basis for successfully defending them. In other less extreme situations, counsel's arguments and the judge's ruling on the issue of jury discharge may well provide guidance to the court hearing the associated contempt proceedings, at least on the issue of penalty if not on liability. The issue of admissibility should therefore depend on the particular circumstances.

Conclusion

1. Unless some clear reason for divergence can be seen, there should be at least an assumption that the two responses to prejudicial publicity during a criminal jury trial which I am discussing--stopping the trial and fining the media--should either occur together or should not occur at all.
2. A clear reason why a trial may legitimately be stopped without the publisher being liable for contempt may be that the publication, although prejudicial, contributed to the public interest in dissemination of information about, and public discussion of, some general matter of public importance.
3. The judge's ruling on any application to abort a trial on account of prejudicial publicity should so far as possible indicate any factors other than the publicity which the judge took into account.
4. The transcript of this ruling, and of counsel's submissions in the application for the trial to be aborted, should in general be admissable in any associated contempt proceedings.
5. Rather than speaking only in terms of a general "tendency" to prejudice a trial, the criterion of contempt liability should include a specific requirement of proof that there was a real risk that the jury would encounter the relevant publicity. A possible formulation, based on the suggestion by Mason CJ in Hinch vs Attorney-General for Victoria,[37] would be that "there was a substantial risk that the published material (a) would come to the attention of one or more members of the jury in the relevant proceedings and, through so doing, (b) would cause serious (or real) prejudice to the fair conduct of those proceedings".
6. Where such a risk was present, but the evidence suggests that the jury did not in fact encounter the publicity (implying that the publicity alone provided no grounds for aborting the trial), this should mitigate any penalty imposed for contempt.
7. Judges and trial lawyers should make further endeavours to ensure greater consistency in decisions on whether or not to abort a trial on grounds of publicity, though it must be recognized that this is a difficult goal to achieve and there must always be a strong element of judicial discretion in each decision.

[1] For example, the NSW Law Reform Commission has recently been given a reference to inquire into the law of contempt by publication, and my UNSW colleague Dr Janet Chan and I, in collaboration with the Justice Research Centre, are conducting empirical research into (amongst other things) the reactions of former jurors to publicity relating to the case in which they were engaged.

[2] It has been specifically held in Victoria that the "unsworn word of the jurors" can be heard on this matter: see R v Vollmer [1996] VicRp 9; [1996] 1 VR 95 at 138 per Southwell and McDonald JJ. In NSW , the judge may interrogate the jurors under oath: Jury Act 1977 (NSW), s 55D.

[3] See, e.g., R v George, Harris v Hilton (1987) 9 NSWLR 527 at 533 (Street CJ).

[4] Murphy v R [1989] HCA 28; (1989) 167 CLR 94 at 101 (Mason CJ and Toohey J).

[5] This may be the court which will hear the contempt: see e.g. Registrar, Court of Appeal v Willesee (1985) 3 NSWLR 650.

[6] [1987] HCA 56; (1987) 164 CLR 15.

[7] The quoted phrases are drawn from the judgments of Wilson J and Deane J [1987] HCA 56; (1987) 164 CLR 15 at 34, 46; see too Toohey J at 70, 77.

[8] Ibid. at 27-28. In the U.K., under the Contempt of Court Act 1981, s 2(2), the corresponding test is in these terms. The Australian Law Reform Commission, in its Report on Contempt (ALRC 35, 1987) at para 295, recommended "substantial risk of prejudice".

[9] [1992] HCA 16; (1992) 173 CLR 592 at 613.

[10] See Mason CJ and Toohey J at 605-606, Brennan J at 613-617 (with whom Dawson J agreed). The minority Justices, Deane, Gaudron and McHugh JJ, did not address this issue.

[11] If the Costs in Criminal Cases Bill 1997 (NSW) had been enacted and the six NSW cases in this group had occurred thereafter, the convicted media publishers would have been liable to be ordered to pay the costs of the aborted trials. See M. Chesterman, "Costly Terminations" (1997) 45 Gazette of Law & Journalism 5.

[12] And also some dicta in "convergence cases": see ,e.g., the NSW Court of Appeal's judgment in Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (In Liq) (1992) 7 BR 364 at 370.

[13] Though for a relatively full elaboration of this (negative) rule, see Attorney-General for NSW v Television and Telecasters (Sydney) Pty Ltd, unreported, Supreme Court of NSW, Greg James J, 10 September 1998.

[14] See, e.g., R v Zammit, unreported, Supreme Court of NSW, Newman J, 14 February 1998 per Newman J--referral to the Court of Appeal to act of its own motion.

[15] Unreported, Supreme Court of SA, 17 May 1996 per Bollen J.

[16] Unreported, NSW Court of Appeal, 21 April 1993. An account of these steps taken to discover whether the jury had read the offending article appears in R v Ladislaus Meissner (unreported, NSW Court of Criminal Appeal, 27 November 1992). See too Bayeh v Attorney-General for NSW (1995) 82 A Crim R 270 at 281-282.

[17] [1982] VicRp 16; [1982] VR 173.

[18] (1982) 6 A Crim R 287; see at 290-300.

[19] [1982] VicRp 16; [1982] VR 173 at 177, citing R v Pacini [1956] VicLawRp 84; [1956] VLR 544 at 547.

[20] (1992) 7 WAR 395.

[21] See Ibid. at 429-430.

[22] Ibid. at 425.

[23] Ibid. at 425-426. See Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 at 627.

[24] (1985) 6 NSWLR 695: see at 697 (Glass JA), 713 (McHugh JA).

[25] His judgment listed a number of other factors: see [1982] VicRp 16; [1982] VR 173 at 180.

[26] See, e.g., R v Thompson, Parry and TVW Enterprises [1989] WAR 219 at 225; Attorney-General for Victoria v Gordon, Cronin and Herald & Weekly Times, unreported, Supreme Court of Vic., 12 July 1985 per Brooking J: contra Hinch v Attorney-General for Victoria [1987] VicRp 62; [1987] VR 721 at 731, 748.

[27] Compare the analogy between sub judice contempt and industrial safety offences--with which I agree--suggested by the Australian Law Reform Commission in its Report on Contempt (ALRC 35, 1987) para 259.

[28] See, e.g., the discussion of this question in Registrar, Court of Appeal v Willesee (1985) 3 NSWLR 650.

[29] Unreported, Supreme Court of Vic., 16 December 1993 per Phillips J.

[30] Unreported, Full Court of the Supreme Court of WA, 16 May 1997.

[31] Unreported, Supreme Court of Vic., 22 February 1997 (liability) and 18 February 1998 (penalty), per Gillard J.

[32] (1985) 3 NSWLR 650.

[33] (1992) 58 A Crim R 281 (SC Qld).

[34] That is, the Bread Manufacturers principle applied, as confirmed in these terms by the High Court in Hinch v Attorney-General of Victoria [1987] HCA 56; (1987) 164 CLR 15.

[35] Unreported, Supreme Court of NSW, 10 September 1998 per Greg James J.

[36] [1985] VicRp 22; [1985] VR 261 at 264.

[37] [1987] HCA 56; (1987) 164 CLR 15 at 27-28.