Attorney-General for the State of New South Wales v X

[2000] NSWCA 199

Reported Decision: (2000) 49 NSWLR 653

New South Wales

Court of Appeal

CITATION:	ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v X [2000] NSWCA 199
FILE NUMBER(S):	CA 40304/99
HEARING DATE(S):	16 December 1999
JUDGMENT DATE:	2 August 2000
PARTIES :	ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v X
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 151; Priestley JA at 226

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Barr J

COUNSEL:	Appellant: M G Sexton SC (Solicitor General) Respondent: S D Rares SC; M Wigney
SOLICITORS:	Appellant: I V Knight, State Crown Solicitor Respondent: Freehill Hollingdale & Page
CATCHWORDS:	Contempt - criminal contempt - media - Supreme Court Act 1970 s101A - publication of material about the accused in upcoming trial - implied or suggested guilt of the accused - Bread Manufacturers public interest defence - balancing conflicting public interests - question of law - contrast between balancing conflicting public interests and the exercise of a judicial discretion - detriment to the trial not outweighed by the public interest in the freedom of communication - no predetermined balance where there is an implication of accused’s guilt by a publication - right to a fair trial - incidental and unintended prejudicial effect of published articles. D
CASES CITED:	Attorney General (NSW) v Willesee (1980) 2 NSWLR 143 Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR(NSW) 242 Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 R v J (1987) 9 NSWLR 615 Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25
DECISION:	Appeal dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40304/99

SPIGELMAN CJ
MASON P
PRIESTLEY JA

Wednesday 2 August 2000


ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v X

Proceedings were brought in the Common Law Division by the Attorney General against the respondent. The summons sought a declaration that the opponent was guilty of contempt in publishing certain material in a Sydney daily newspaper. The articles contained a number of strong statements about the drug running conduct of Duong Van Ia whose photograph appeared on the front page. The article referred to the fact that Duong had been charged with criminal offences and that he was yet to face trial for them. At the time of publication, Duong had been committed for trial in the District Court on charges of supplying and being knowingly supplied with heroin.

Barr J addressed the “public interest defence” referred to by Jordan CJ in Ex parte Bread Manufacturers; Re Truth and Sportsman Ltd 37 SR(NSW) 242, finding it reasonably open that the detriment to the trial was outweighed by the public interest in the freedom of communication.

The jurisdiction of the Court of Appeal under s101A is confined to a “question of law arising from or in connection with the proceedings.” The Attorney General raised five questions to the Court of Appeal, but having regard to the function of s101A of the Supreme Court Act 1970, the Court of Appeal needed to address only the fifth issue raised ie:

Whether it was reasonably open to his Honour to find that the detriment to the administration of justice was outweighed by the public interest in the freedom of communication of the material contained in the publication.

HELD:
(per Spigelman CJ and Priestley JA dismissing the appeal):

1 Consideration of what constitutes a “question of law” in the statutory context. R v J (1987) 9 NSWLR 615 (referred).

2 The balancing of conflicting public interests required by the Bread Manufacturers defence is not, of itself, a question of law per s101A of the Supreme Court Act 1970. Re Queensland Electricity Commission Ex parte Electrical Trade Union of Australia (1987) 61 ALJR 393 (discussed).

3 There is no predetermined balance where there is an implication or suggestion or canvassing of guilt by the defendant. Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (applied); Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 (discussed); Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 (discussed).

4 Consideration of when the result of a balancing exercise is “reasonably open”. Barr J’s finding was reasonably open as a matter of law.

(Per Mason P dissenting and upholding the appeal)

5 It was unnecessary to decide whether the balancing of the competing public interests is itself a question of law. This was a case where the method in which the balancing was done and/or the outcome was such that the Court could identify a question of law capable of attracting the appellate jurisdiction invoked in this case.

6 Where a publication is proven beyond reasonable doubt to have the requisite tendency to interfere with the fair trial of a pending criminal charge where the interference consists of implication or suggestion of guilt or the canvassing of matters directly related to the central issue of guilt, the Bread Manufacturers defence is not available. Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (discussed); Hinch v Attorney-General (Victoria) (discussed).

7 It was not reasonably open to say that the detriment to Duong’s trial was outweighed by the public interest in the naming of him as a person involved in the illicit drug industry.

8 The primary judge also erred in finding that the prejudicial effect of the articles was incidental and unintended.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40304/99


SPIGELMAN CJ
MASON P
PRIESTLEY JA

Wednesday 2 August 2000



ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v X

JUDGMENT

1 SPIGELMAN CJ: The pertinent facts and the text of s101A of the Supreme Court Act 1970, are set out in the judgment of Mason P, which I have read in draft. It is unnecessary to repeat them here. 2 The jurisdiction of this Court under s101A is confined to a “question of law arising from or in connection with the proceedings”. The Respondent contends that several of the questions posed for this Court’s determination in the summons of the Attorney General do not raise a “question of law”. 3 The five questions submitted by the Attorney for determination by the Court are:

(i) Whether his Honour, in finding the charge of contempt not to be made out, used the correct test in the application of the decision in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 by saying that the “ultimate practical question is whether it is reasonably open to say that the detriment to the trial is outweighed by the public interest in freedom of communication”.

(ii) If the decision in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd requires a balancing of the prejudice to the trial of the accused and the utility of a particular discussion of public affairs, whether his Honour in fact carried out such a balancing exercise.

(iii) Whether the principles set out in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd prevent a finding of contempt in circumstances where, as his Honour found, the articles in question stated that the accused was charged with the supply of heroin and also stated that the accused was in the business of supplying heroin.

(iv) Whether his Honour was correct in finding that it was necessary for the plaintiff to negate the “defence of public interest” before a finding of contempt could be made in relation to the publication in question.

(v) Whether it was reasonably open to his Honour to find that the detriment to the administration of justice (which his Honour held to be present) was outweighed by the public interest in the freedom of communication of the material contained in the publication.

4    The Solicitor General, appearing on behalf of the Attorney General of New South Wales, did not structure his submissions in accordance with these five questions. The structure of the submissions was to identify three errors of law:

(1) The failure to attach “sufficient weight” to the seriousness of the prejudice flowing from the articles. It was submitted that if “proper weight” to the seriousness of the prejudice had been given then “as a matter of law … the prejudice could not be outweighed by a countervailing public interest …”

(2) The second error was said to “relate” to the weight given to the public interest in freedom of communication. It was submitted that any such public interest “was not capable, as a matter of law, of overriding the already identified public interest in the administration of justice”.

(3) The third error was his Honour’s finding that the prejudicial effect of the articles was “incidental and unintended”.

5    The Attorney submitted that each of the two matters which must be balanced - namely, prejudice to the administration of justice on the one hand and freedom of communication on the other hand - were “legal concepts”. It was submitted that the process of identification of each “concept”, together with the weight to be attached to each step in the “process”, presumably of balancing, enable the trial Court to make a finding as to whether or not a contempt has occurred. It was submitted that this process has no resemblance to the way in which a court makes findings of fact or to the way in which a court exercises a discretion. 6    The submissions did not address, in terms, each of the specific questions raised. However, it was submitted that the balancing exercise itself was a “legal exercise”. It was expressly submitted that the question of whether it was reasonably open to reach the conclusion that his Honour reached was a question of law. This is the fifth question posed in the amended summons in this Court. In oral submissions the learned Solicitor General made it clear that the formulation of this question was intended to raise the three alleged errors of law identified above.

The First Question

7    The first question before the Court is whether or not his Honour used the correct test when he applied the “Bread Manufacturers defence”, as approved by the High Court in Hinch v Attorney-General (Victoria) (1987) 164 CLR 15. The identification of the correct test does raise a question of law. However, the question as posed is confined to a particular aspect of his Honour’s reasons. 8 In its written submissions the Respondent did not submit that Question (i) failed to raise a question of law. It asserted that the question should be answered “Yes” on the basis that his Honour had correctly identified the test. In oral submissions, the Respondent asserted that none of the questions were questions of law, but did not make any particular submissions with respect to Question (i). 9 The Bread Manufacturers defence is concerned with the process of reconciliation of two conflicting public interests: the public interest in the administration of justice and the public interest in freedom of communication. The Solicitor General submitted that his Honour conducted the requisite balancing exercise without giving the former public interest the weight which, as a matter of law, it should be given. As indicated above, three alleged errors of law were identified. 10    Question (v) incorporates a particular statement by his Honour which is said to contain the incorrect test. The sentence in his Honour’s reasons to which this question directs is the following:

“The ultimate practical question is whether it is reasonably open to say that the detriment to the trial is outweighed by the public interest in freedom of communication.”

11    The context in his Honour’s judgment for the sentence referred to in the question is as follows:

“123 Freedom of speech, public discussion and information should not be qualified except in the face of public interest of equal or greater importance. Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 per Mason J at 98.
124 The right of freedom of speech is not absolute, however, and the law curbs freedom of speech when it is necessary to do so to prevent a real and substantial prejudice to the administration of justice. Hinch v Attorney-General (Vic) per Wilson J at 41.
125 The public interest in ensuring that criminal proceedings are conducted free of prejudice will attract great weight and make it less likely that the public interest in the freedom of discussion of matters will outweigh it. Hinch v Attorney-General (Vic) per Wilson J at 37.
126 That does not mean, however, that the defence cannot succeed if criminal proceedings are affected. The whole of the circumstances of the publication and its relationship if any to the relevant trial must be considered. The ultimate practical question is whether it is reasonably open to say that the detriment to the trial is outweighed by the public interest in freedom of communication. The plaintiff must prove that it is not. Hinch v Attorney-General (Vic) per Deane J at 51.”

12    In par [126] of his judgment, extracted in the first question, Barr J was paraphrasing part of the following passage from the judgment of Deane J in Hinch at 50-51:

“… 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 … 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.”

13    When the passage from Deane J upon which Barr J relied is set out, it is clear that his Honour was not, in the sentence extracted in the first question, intending to suggest that no particular weighting was involved in the process of conducting the balancing exercise. 14    This conclusion is confirmed by the passage from the judgment of Wilson J in Hinch to which his Honour referred in par 124 of his judgment as quoted above. Wilson J said at 41-42:

“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.
But it is important to emphasis 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.”

15    The submissions on behalf of the Attorney did not identify any particular error said to be contained in his Honour’s paraphrase of the passage from the judgment of Deane J in Hinch. It appears to be submitted that his Honour failed to apply a test in which the relevant scales had been “tilted”, in the sense identified by Wilson J. It does not appear to me that his Honour committed any such error. No other error was identified in submissions before this Court. Specifically, no attempt was made to relate the three alleged errors of law, about which submissions were made, to this question. 16    No submission was made that the test as stated in Question (i) was wrong. The submissions were directed to alleged errors in the application of such a test. This is reflected in the fact that the terminology of this test is relied upon in Question (v). In these circumstances it is not appropriate, in my opinion, to answer Question (i). 17    Mason P identifies a legal error on the part of Barr J which is capable of being characterised as ‘applying the wrong test’, albeit not in the respect identified in this question. As his Honour holds that the error is pertinent to Question (v), I will consider it in that context.

The Second Question

18    The second question presented to the Court for its determination is “whether his Honour in fact carried out” a balancing exercise in the circumstances of the case. 19    His Honour expressly identified, assessed and “balanced” the conflicting public interests. No submission to the contrary was made. The focus of the Attorney’s submissions was on the result of such a process and the alleged errors that must have occurred in order to reach that result. No submissions were made in the terminology of this question. 20    It is not appropriate to answer the second question.

The Third Question

21    This question refers to only two matters in the publication: that the accused was charged with the supply of heroin and that the accused was in the business of supplying heroin. The question suffers from two defects. First, it is too closely tied to the facts of the particular case to constitute a question of law. Second, it proceeds upon the assertion that it is possible to treat as a question of law, a process of evaluation based on something less than the full range of relevant facts (c/f DPP Reference (No 1 of 1984) [1984] VR 727 at 729). To mention only one such, obviously material, factor for determining the extent of the prejudice to the administration of justice, the question makes no reference to the length of time before the trial. 22 It is not appropriate to answer this question.

The Fourth Question

23    No submissions of the Crown were directed to this question. It is not appropriate to answer this question.

The Fifth Question

24 The Respondent contends that Question (v) is not a “question of law” within the meaning of s101A(1) of the Supreme Court Act 1970. If that is so, then the Court has no jurisdiction to answer the question.

Question of Law

25    The formulation “question of law” employs general words capable of application at different levels of generality. When Parliament uses such words it does not necessarily intend to encompass everything that is capable of falling within them. It is often necessary to read down words of general application. (See my Sir Ninian Stephen Lecture at the University of Newcastle “Statutory Interpretation: Identifying the Linguistic Register” to be published in the Newcastle University Law Review, accessible at See also R v Young (1999) 46 NSWLR 681 at 689). 26 It is necessary to identify the drafter’s linguistic register. As Lord Simon of Glaidsdale said, in a case concerned with the meaning of the word “premises” in a particular statute:

“Statutory language, like all language, is capable of an almost infinite gradation of ‘register’ - i.e., it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc.). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.” ( Maunsell v Olins [1975] AC 373 at 391).

(See also Farrell v Alexander [1977] AC 59 at 84; Black-Clawson International Limited v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 675).

27    As his Lordship also said in Stock v Frank Jones (Tipton) Limited [1978] 1 WLR 231 at 236:

“Words and phrases of the English language have an extraordinary range of meaning. This has been a rich resource in English poetry (which makes fruitful use of the resonances, overtones and ambiguities), but it has a concomitant disadvantage in English law (which seeks unambiguous precision, with the aim that every citizen shall know, as exactly as possible, where he stands under the law).”

28    The determination of whether a particular alleged error in matters such as fact finding, the exercise of a discretion or a process of evaluation answers the description “question of law”, will depend on the scope, nature and subject matter of the statute, including the nature of the body making the relevant decision. In the present case the decision maker is a Judge of the Supreme Court of New South Wales. Different consideration may apply in the case of a non-judicial decision maker. (See e.g. Craig v South Australia (1994-1995) 184 CLR 163 esp at 176-180). 29 It is not necessarily the case that the meaning given to the words in one statutory context should be applied in another. However, a number of matters have been identified to constitute a “question of law” in such a way that they would generally fall within those words, whenever used in a statute. The state of the case law is well described as follows:

“Looking at the devices courts have used to address the problem is like looking into the average toolbox. There is a lot of clutter that could have been cleared out long ago. There are one or two baffling gadgets with no readily identifiable function. And there are a few old, sturdy, and serviceable tools that do all the work. It would be a mistake to think that the toolbox is useless, just because it is messy.”
(Endicott “Questions of Law” (1998) 114 LQR 292 at 297).

30    In Australian case law, a “few, old sturdy and serviceable tools” are listed by Jordan CJ in Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126 at 137-138. See, more recently, Collector of Customs v PozzolanicEnterprises Pty Ltd (1993) 43 FCR 280 at 287-288. 31 In a joint judgment, the High Court said in Collector of Customs v Agfa-Gevaert Limited (1995-1996) 186 CLR 389 at 394:

“The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has as yet been formulated.”

32    As this passage indicates, it is often the case that analysis of whether a particular matter answers the description of “question of law” proceeds on the basis that those words are used in contra-distinction to “question of fact” and that the combination of the two formulations exhausts the whole of the relevant sphere of discourse. It is usually, but not always, useful to proceed on this basis. (See e.g. Larson v Vile [1999] NSWCA 397 at [39]). 33 As Wilson J said in Hinch at 43:

“… 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.”

34   

Furthermore, as Toohey J said in Hinch at 77:

“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.”

35 The task of balancing conflicting public interests involves the making of a judgment by a process of evaluation. It is distinguishable from the making of a finding of fact. It is also distinguishable from the exercise of a discretion, in the sense of a choice between alternative courses of action. Although distinguishable, a process of evaluation will be found, for many jurisprudential purposes, to have a close analogy with fact finding and the exercise of a discretion. 36 The present context has certain distinctive elements which do not often arise. Section 101A is precisely modelled on s5A(2) of the Criminal Appeal Act 1912. In both contexts the answer to the question is incapable of having any consequential effect upon the outcome of the proceedings, to use the formulation of s101A(1) itself, “from or in connection with” which the asserted “question of law” has arisen. 37 It is by no means apparent that a matter which would answer the description of “question of law” in the more common statutory context where an appeal, albeit limited in this way, is capable of having practical effect on the particular proceedings, will necessarily answer that description in a context where there is no such effect. In each case, the scope, purpose and subject matter of the statute may affect the construction of the words “question of law”. 38 In Mellifontv Attorney General (Queensland) (1991) 173 CLR 289 at 305, the High Court described s669A(2) of the Queensland Criminal Code - the Queensland equivalent of s5A(2) of the Criminal Appeal Act (1912) (NSW) - in the following way:

“… the purpose of seeking and obtaining a review of the trial judge’s ruling was to secure a correct statement of the law so that it would be applied correctly in future cases. … The statutory procedure, which has counterparts in other Australian jurisdictions, is a standard procedure for correcting error of law in criminal proceedings without exposing the accused to double jeopardy. It is a procedure which was designed to enable the Crown to secure a reversal of a ruling by a trial judge without infringing the common law rule that the Crown cannot appeal against a verdict of acquittal, a rule which precluded a review of a trial judge’s ruling at the instance of the Crown in the case of acquittal. The fundamental point, as it seems to us, is that s669A(2) enables the Court of Criminal Appeal to correct an error of law at the trial.”

39 The provision equivalent to s5A(2) of the Criminal Appeal Act in the United Kingdom is s36(1) of the Criminal Justice Act 1972, which differs only in its restriction to “a point of law which has arisen in the case”, without the expansive words found in the New South Wales statute: “any question of law arising at or in connection with the trial”. Nevertheless the following observations by Lord Mustill in Attorney General’s Reference (No 3 of 1994) [1997] 3 WLR 421 at 438, (referred to with approval in Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 241 at 250 and Director of Public Prosecutions Reference No 1 of 1999 (1999) 149 FLR 465 at 469-470), are pertinent for both New South Wales statutes:

“The courts have always firmly resisted attempts to obtain the answer to academic questions, however useful this might appear to be. Normally, where an appeal is brought in the context of an issue between parties, the identification of questions which the court should answer can be performed by considering whether a particular answer to the question of law might affect the outcome of the dispute. The peculiarity of a reference under the Act of 1972 is that it is not a step in a dispute, so that in one sense the questions referred are invariably academic. This peculiarity might, unless limits are observed, enable the Attorney-General, for the best of motives, to use an acquittal on a point of law to set in train a judicial roving commission on a particular branch of the law, with the aim of providing clear, practical and systematic solutions for problems of current interest. This is not the function of the court …”

40    In R v Lewis, Ex parte Attorney General [1991] 2 Qd R 292 at 300, (sub nom Re Lewis (1991) 48 A Crim R 218), Macrossan CJ said:

“…s669A requires the court to express an opinion on a point of law said to be contained in a reference or at least requires the court in expressing its opinion to answer the question said to be raised, only if the point is of the character to which it can be assumed the subsection intends to refer. It is concerned with a point involving principle capable of some general application as opposed to rulings which are dependent upon the manner in which an assessment is made of particular factual situations which are not readily capable of wider application to other situations.”

41    To similar effect are the observations in the NSW Court of Criminal Appeal in R v J (1987) 9 NSWLR 615, where Lee J said at 616:

“At the outset it is to be said that in many cases it will be wholly inappropriate for the Attorney-General to bring before this Court, as a question of law, the question whether there was or was not evidence of a particular ingredient forming part of the charge made against the accused. The purpose of s5A(2) is to provide a procedure whereby the court can pronounce upon a question of law raised that is or may be of importance in the conduct of criminal trials in this State. The mere fact that a trial judge has made an error of law will not be sufficient. The question of law raised should be one of substance, the significance of which to the criminal law does not come to an end when the trial in which it arose concludes.”

42    Furthermore, Hunt J said at 626:

“It has been said time and time again that the procedure laid down by of the Criminal Appeal Act 1912, s5A(2), whereby following an acquittal the Attorney-General may submit questions of law arising at or in connection with a trial for the determination of this Court, is not to be used simply to resolve such a question which has importance only in relation to the trial which has taking place. The decision of this Court upon such a question does not affect the acquittal obtained, and it cannot lead to a new trial of the person acquitted.
The purpose of the procedure is to provide a precedent by which guidance is furnished in relation to other trials in the future. There must be involved a question of sufficient substance as to justify the adoption of the procedure, and questions of transitory or minimal significance in relation to the criminal law generally or questions which do no more than establish the trial judge in the particular case made some error of law do not justify either argument before or decision by this Court pursuant to s5A(2).”

(See also R v Garcia (1996) 85 A Crim R 151 at 152).

43    In the case of a statute where an appeal on a question of law will not have any practical implications for the particular proceedings in which the appeal is brought, the construction of the words “question of law” may well be closer to the scope of the formulation “question of law alone”, which appears in some statutes. 44    In Williams v The Queen (1986) 161 CLR 278 at 287, 312 and 314 it was held that a mixed question of fact and law does not fall within the description of “question of law alone”. The Queensland Court of Criminal Appeal has held, with respect to s669A, which does not contain a reference to “question of law alone” that a mixed question of fact and law does not fall within the statutory power. As Thomas J, with whom Andrews CJ and Ryan J agreed, said:

“It is not the function of this court to review questions of fact, assessments of evidence, or to embark upon questions of law which can only be considered in conjunction with disputed assessments of fact.” (The Queen v Gill, Supreme Court of Queensland, Court of Criminal Appeal (unreported) 20 November 1986).
Is Balancing a Question of Law?

45    As I have indicated above, the learned Solicitor General submitted that the balancing exercise itself was a “legal exercise” and, accordingly, that the issue whether it was reasonably open to reach the conclusion that his Honour reached, was a question of law. This submission implies that Question (v) was too restrictive. If the balancing exercise is itself a question of law then it would be sufficient to say that his Honour was incorrect It was submitted that by reason of the three alleged “errors of law” outlined in the submissions this Court should find that the question of law contained in Question (v) should be answered in the negative. 46    Support for the submission made on behalf of the Attorney General can be derived from the judgment of Gaudron J in Hinch supra where, at 85 and 87, her Honour described the balancing exercise as a “question of law”. However, Deane J at 50 characterised the decision whether detriment to the administration of justice was outweighed by other public interests to be “one of fact”. No other judgment in that case identifies the balancing process in relevant terms. 47 In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393, the High Court had before it an application for mandamus directed to a Full Bench of the Australian Conciliation and Arbitration Commission requiring it to hear and determine an industrial dispute according to law. The case turned on s4(1)(d) of the Conciliation and Arbitration Act (1904) (Cth) which enabled the Commission to refrain from further hearing or determining the dispute where it appeared:

“That further proceedings are not necessary or desirable in the public interest.” (s41(1)(d)(iii))

48    One ground advanced in support of the application for mandamus was that the Full Bench failed to take into account a relevant consideration, namely whether or not it was in the public interest to refrain from determining an industrial dispute which was, in part, incapable of being heard and determined by any State industrial authority. In support of this argument counsel for the applicant union made certain submissions to which the joint majority judgment of Mason CJ, Wilson and Dawson JJ referred in the following manner at 395:

“First, it is said that the Act makes it clear that the settlement of industrial disputes is the fundamental concern of the Act and that consequently any consideration of the public interest under s41(1)(d)(iii) must take that concern into account. …
The first step in this argument makes an important point. It is undoubtedly correct. At the same time, it is necessary to remember that the importance the Act places upon the settlement of industrial disputes cannot of itself dictate the exercise of the discretion given by s41(1)(d)(iii). That paragraph itself recognises that it may be in the public interest to leave an industrial dispute unresolved. Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. In this case the Commission was called upon to weigh in the balance two competing public interests. One was the importance of settling in its entirety the dispute initiated by the ETU’s log of claims. The other was the importance of leaving the dispute to be resolved by the State tribunal despite the limitations on its jurisdiction if that course was likely to maintain the marked improvement in industrial relations in the industry that had occurred since the dispute arose and thereby contribute to industrial peace and an efficient power supply.” (Emphasis added)

49    The relevance of this passage is the identification of the process of “balancing of interests” as being “a question of fact and degree”. It is true that this comment is made in the context of the proper construction of the phrase “in the public interest” appearing in the statutory formulation that confers a discretionary power. Nevertheless, in my opinion, the approach is different to that which Gaudron J adopted in Hinch. 50 This conclusion is reinforced by a later passage in the joint judgment where their Honours said at 396:

“Failure by the Commission to give sufficient weight to a relevant factor in coming to its decision could not establish a constructive refusal to exercise jurisdiction. Indeed, generally speaking, such a failure does not even entitle an appellate court to overturn the discretionary decision of a primary judge: see Gronow v Gronow (1979) 144 CLR 513 at 519-520. A fortiori, in a case such as the present, to embark on the evaluation of the weight accorded by the Commission to competing public interests necessarily involves an impermissible inquiry into the merits of the case .” (Emphasis added)

51    Brennan J dissented but not in a respect relevant for present purposes. Indeed, his Honour said at 397:

“A decision founded on the balancing of competing public interests cannot be judicially reviewed if the Commission has not made an error of law in determining the nature of relevant competing interests and if the decision is not unreasonable in the Wednesbury sense: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.”

52    In a subsequent joint judgment of Mason CJ, Brennan and Gaudron JJ in Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 67 ALJR 389 at 390 their Honours referred to the Queensland Electricity Commission case as authority for the proposition that:

“Ascertainment of where the public interest lies is very much a question of fact and degree …”

53    The identification of the “public interest” in the context of a statutory power to determine matters in accordance with a test so expressed, was also considered by the Court in O’Sullivan v Farrer (1989) 168 CLR 210 where, at 216, the joint judgment of Mason CJ, Brennan, Dawson and Gaudron JJ said at 216:

“… the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’: Water Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR at 505 per Dixon J.”

54    In the present case the issues are not the same as have arisen in this line of authority. The Court is not concerned to construe the words “public interest” in the context of a discretionary statutory power. The issue in the present case is to determine whether the balancing exercise between two competing public interests itself constitutes a “question of law” within the statute under consideration. Nevertheless, the reasoning does offer assistance in the determination of the issue before the Court. It supports the conclusion that the balancing exercise required by the Bread Manufacturers defence is not, of itself, a question of law. 55    In my opinion, the process of balancing conflicting public interests and determining which should prevail in particular circumstance, is not of itself the determination of a question of law. The scope, range and nature of the considerations relevant to such a determination involve elements about which a wide range of legitimate opinion may exist. The formulations “matter of fact and degree”, “reasonably open” and “capable of decision either way” frequently appear in reasoning on this matter. (See e.g. Endicott supra at 301-306). There are, however, limits to the range of legitimate opinion. Question (v) requires the Court to determine whether any such limits have been exceeded in this case. It must do so in a statutory context which requires that the determination of the question should be of significance as a precedent for future cases.

The “Reasonably Open” Test

56    Question (v) asks whether it was “reasonably open” to find that the detriment to the administration of justice was outweighed by the public interest in the freedom of communication. 57    The introduction of words such as “reasonably open” is not always helpful. As Gleeson CJ and McHugh J said in Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40]:

“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’ or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.”

58    To the same effect are the observations of Mildren J in Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 38:

“… I think difficulty of understanding may arise by the use of pejorative words such as ‘perverse’, ‘unreasonable’, ‘illogical’ and the like expressions which by their nature indicate only that in the opinion of the user, the decision ought not to have been made, and the user holds that opinion rather strongly.”

59    There are some cases on judicial review of administrative decisions in which a suggestion appears that the finding of fact that is not “reasonably open” constitutes an error of law. (See for example Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; Instrumatic Ltd v Supabrase Limited [1969] 1 WLR 519 at 521). However, these statements have not generally been accepted as accurately stating the law insofar as it may be suggested that there is some difference between a finding that is “not open” and one that is “not reasonably open”. (See e.g. Madalaine Textile Manufacturing Co Pty Ltd v Merrylands Bus Co Pty Ltd [1969] 2 NSWR 573 at 574-575; Craig Administrative Law (3rd ed) at 159; S v Crimes Confiscation Tribunal [1998] 1 VR 83 (sub nom Powley v Crimes Compensation Tribunal (1996) 11 VAR 146) at 90-92; Comcare Australia v Lees (1997) 151 ALR 647; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 420-422). 60 In S v Crimes Compensation Tribunal at 90-91 Phillips JA referred to the intrusion of the word “reasonably”, in the context of whether a finding of fact was “open”, to constitute a “distraction” (at 91 lines 1 and 31). 61    Phillips JA went on to say, at 91, (in a passage quoted with approval by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Epeabaka supra at 421-422):

“The word ‘reasonably’ is used in this context, I suggest, just to emphasise that when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word ‘reasonably’ lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to a question of law, simply because that finding is regarded as ‘unreasonable’. That is not the law as I understand it, at least in Australia. A finding of fact will be overturned on appeal on a question of law only if that finding was not open.”

62    For purposes of determining whether a “question of law” arises in the context of the evaluation involved in the determination of the Bread Manufacturers defence in a case of contempt, the issue is whether or not the degree of interference with the administration of justice in the present circumstances was of such a character that no other conclusion but that the defence was not made out was open to his Honour as a matter of law. The introduction of the qualificatory word “reasonably” may lead to error. As Professor Craig has pointed out with respect to an analogous occasion:

“… Lord Denning MR cited … Lord Ratcliffe’s formulation that if a tribunal reached a conclusion which could not reasonably be drawn then it would be wrong in law, but paraphrased this to mean something rather different: if the tribunal drew the wrong conclusion from the primary facts it would be wrong in law. The gentle sleight of linguistic formulation transforms the test to be applied.”

(Craig Administrative Law (3rd ed) p159).

63    The word “reasonably” is a weasel word capable of such inappropriate application. Its use, as in Question (v) presently under consideration, must be carefully confined. The word “reasonably” adds little, if anything, to the formulation “not open” or “not open as a matter of law”.

Is There a Predetermined Balance?

64    Mason P would answer Question (v) in the negative. His Honour’s reasoning is based on the proposition that some types of interference with the administration of justice are incapable of attracting the Bread Manufacturers defence. I agree that a question of law does arise in the identification of “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”. (Hinch supra at 52 per Deane J, emphasis added). 65 Mason P refers to Hinch supra at 40, 43, 52-3, 66 and 85 as authority for the proposition that the Bread Manufacturers defence cannot be made out in any case in which there is an intention to interfere with the administration of justice. 66    The proposition that the Bread Manufacturers defence is not available to a contemnor who subjectively intends to interfere with the administration of justice does not, as Mason P indicates, arise in the present case. It is accordingly not relevant to consider this issue. 67    Mason P holds that the defence is also incapable of being attracted where the relevant interference with the administration of justice can be characterised in one of the following three ways:

(i) An implication of guilt;

(ii) A suggestion of guilt;

(iii) Canvassing of matters directly related to the issue of guilt.

68    The proposition advanced by Mason P is, in effect, that the balancing exercise between the public interest in the administration of justice and the public interest in freedom of communication is not a free standing exercise for a judge. In each of the three cases to which his Honour refers - of progressively diminishing impact - no question of balancing arises, because the law has, in the formulation of the relevant rule, already conducted the balancing exercise. There is such a predetermined balance in the case of legal professional privilege, where the law has already undertaken the process of balancing the conflicting public interests. (See e.g. Waterford v The Commonwealth (1987) 163 CLR 54 at 64-65; Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121 at 128, 133, 135; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 583). 69 With respect to the publication considered by Barr J, Mason P concludes:

“The impugned publication was in a form and at a time that it directly trenched upon the question of Mr Duong’s guilt.”

70    The publication is summarised in the judgment of Mason P. I accept that it does give rise to an implication of guilt of the offence charged. At the very least, it contains a suggestion of guilt. It also canvasses matters directly related to the issue of guilt. If any one of the legal propositions advanced by Mason P is correct, then Question (v) should be answered in the negative, as his Honour does. 71    The first thing to note about the judgments in Hinch, on which Mason P primarily relies, is that the Court delivered five separate judgments. It is not easy to extract a ratio decidendi from these judgments. They do not, in my opinion, authoritatively establish a single principle of the character identified by Mason P. 72    In Hinch Mason CJ identified the issue before the Court at 22:

“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?”

73    His Honour noted that in the earlier decision of the Court in Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 (“the BLF case”), four judgments adopted a balancing approach (namely Wilson J at 133-134, Brennan J at 177, Stephen J at 75 and Mason J at 95). 74 In the BLF case Gibbs CJ was of the view that the court balanced the competing interests in formulating the principle. He said at 60:

“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 … 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 the contempt, not in deciding whether a contempt is being committed.”

Gibbs CJ was alone in this respect.

75    Brennan J in the BLF case at 169 and 175-176, drew a distinction between a technical contempt and a contempt which moved a court to action. His Honour suggested that the balancing of the two public interests takes place when the court decides whether to punish a contempt. 76    As Mason J stated in Hinch at 24, Stephen, Wilson and Mason JJ in BLF dealt with the matter on the basis that the balancing of the two public interests takes place at the stage when the Court decided whether a contempt has been committed. Mason CJ at 24.6 left this matter open for future consideration in the High Court. There may not be a ratio which is formally binding. However, this represents the preponderance of opinion which this Court should adopt unless satisfied that it is wrong. 77    In Hinch Mason CJ formulated the test in terms of a “substantial risk of serious interference” with the administration of justice, which he accepted to be the equivalent of the test of “real risk” formulated by Gibbs CJ in the BLF case (at 60). His Honour said at 27:

“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.”

78    Mason CJ did not formulate a rule which required contempt to be found in particular circumstances. I do not see any support in the judgment of Mason CJ for the propositions advanced by Mason P in the present case. 79    In Hinch Wilson J identified the issue before the Court at 41 as:

“… 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.”

80    His Honour referred to a “prima facie contempt deserving of punishment” in order to accommodate the various expressions of opinion in the BLF case. Specifically, it incorporates the distinct approach of Brennan J. 81    I repeat his Honour’s conclusion at 41-42 was:

“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.
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 interests of the due administration of justice it will curb freedom of speech, but only to the extent that it is necessary to prevent a real and substantial prejudice to the administration of justice …”

82    This ‘thumb on the scales’ approach does not, in my opinion, support the formulation of a rule of the character identified by Mason P in the present case. It indicates a weighted approach to the balancing exercise, rather than a conclusion that in certain circumstances no issue of balancing arises at all. 83    Subsequent references in the judgment of Wilson J, are also directed to matters of weight, rather than constituting the formulation of a predetermined balance, e.g. “the seriousness of the interference may outweigh any public interest in the freedom to discuss the matter” (43.4) and “bring the scales down heavily in favour of a finding of punishable contempt” (at 43.5, emphasis added) 84    His Honour concluded at 43:

“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.” (Emphasis added)

The “provision of guidance” is not the formulation of a rule.

85    Deane J, as quoted by Mason P in his judgment, said in Hinch at p52:

“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.”

86    In my opinion, Deane J was stating that in the postulated circumstances, such would ordinarily be the result of the balancing process. His Honour was not intending to formulate a rule of law which would mean that no balancing process occurred at all. 87    Deane J made these observations when considering the first of two propositions, with respect to the Bread Manufacturers defence, which his Honour formulated. The observations were made for the specific purpose, which his Honour went on to further consider at pp52-53, of considering the original phrase in the Bread Manufacturers case (at 249) referring to situations in which the detriment to a fair trial is “an incidental but not intended by-product” of publication. Deane J concluded that this formulation was too narrow a statement of the circumstances in which the public interest in the due administration of justice could be outweighed by other public interest considerations. To similar effect is his Honour’s subsequent identification of circumstances in which it would be “difficult if not impossible” to justify the interference with the administration of justice (at 57.8 and 58.9). In my opinion, these observations are consistent with an outcome of the balancing process, rather than the application of a rule which prevents the Court undertaking a balancing process in certain defined circumstances. 88    Indeed, as his Honour said at p53:

“… 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 …”

89    The judgment of Toohey J confirms, in my opinion, that, subject only to the case where interference with the administration of justice is intended by the alleged contemnor (at 67.4), the Court must undertake a balancing process. With respect to the observation by Jordan CJ in Bread Manufacturers in relation to “an incidental but not intended by-product”, Toohey J said at 66:

“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.”

90    Gaudron J at 83-84 referred to the judgments in the BLF case and noted that Gibbs CJ was alone in proposing that the matter was determined by the identification of the rule. Her Honour observed that Stephen, Mason and Wilson JJ all accepted that what was involved was a balancing process and that Brennan J found such a balancing process at the stage when the court is deciding whether to act. Her Honour also noted that neither Murphy J nor Aickin J commented on this matter. 91    Gaudron J identified the public interest in freedom of communication, with respect to the subject matter involved in the proceedings before the Court in Hinch, as not being an interest “which could take precedence over, or even be equated with, protecting the administration of criminal justice from the risk of interference” (at 87). Her Honour found that, on the facts of the case in Hinch, the references to a previous conviction, and an “insinuated suggestion” that the subject of the comments was guilty of other like offences, “trenched directly on the question of [his] guilt of the charges pending” (p88). Her Honour added at 89 that:

“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.”

92    Her Honour held that the subject matter of the particular issue under discussion in Hinch was not of that character. As I understand her Honour’s observations, this was not a result of a legal rule that “canvassing of guilt” could not be the subject of a finding that the balance lay in favour of freedom of communication. Rather, her Honour concluded that the discussion under consideration in Hinch was not such as to establish precedence for freedom of communication over administration of justice, in the particular circumstances. This was not a denial of a balancing process. It was the application of a balancing process in the circumstances of the case. 93    There are also a number of decisions of this Court, including five judge benches, which are pertinent to the present issue. These include Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143; Registrar of the Court of Appeal v Willesee [1985] 3 NSWLR 650; Director of Public Prosecutions v Wran [1986] 7 NSWLR 616 and Attorney-General for New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368, to all of which Mason P makes reference. To these can be added the decision of this Court in Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588. 94 In Attorney General v Willesee, supra, Moffitt P made a number of observations about the judgment in Bread Manufacturers, particularly at p149C-F and 151A-F. His Honour sought to distinguish Bread Manufacturers on the basis that it involved civil proceedings. 95    In the next contempt case in this Court, Registrar of Court of Appeal v Willesee supra, the members of the Court indicated that the observations of Moffitt P to the effect that the Bread Manufacturers defence may not be applicable in the case of a contempt which impinges upon a criminal trial, would not be followed. (See at 659-660 per Kirby P; 677- 679 per Hope JA, 681-683 per Priestley JA. See also Attorney-General (NSW) v John Fairfax & Sons Limited (1986) 6 NSWLR 695 at 714-715 per McHugh JA). Subsequently in Hinch, the High Court established that the Bread Manufacturers defence applied in the case of criminal proceedings. The suggestion in the reasons of Moffit P in Attorney-General v Willesee that, in some way, the law establishes a rule which predetermines the balance, cannot be regarded as authority, when a critical aspect of his Honour’s reasons must be taken to have been overruled in Hinch. 96    On 12 March 1987, a five judge bench of this Court comprising Street CJ and Hope, Glass, Samuels and Priestley JJA handed down decisions in DPP v Australian Broadcasting Corporation and DPP v Wran. Both these cases predate the High Court’s decision in Hinch, which was handed down on 2 December 1997. Save in those respects in which an inconsistent ruling can be discerned from the various judgments in Hinch, this Court would follow the joint judgments of the five judge benches in these cases. 97    Mason P refers to the passage in the Court’s reasoning in Wran concerning the observations of Jordan CJ in Bread Manufacturers where their Honours said at 629:

“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 in a criminal trial, the guilt or innocence of the accused person, could rarely if ever fall within this category: Registrar of the Court of Appeal v Willesee . The present is a case where the relevant part of the publication was directed exclusively to that issue and no amount of public concern with the guilt or innocence of Mr Justice Murphy would justify the publication; indeed that public concern strongly vindicates the law that prohibits any such publication.” (Emphasis added)

98    The publication in that case was a statement by the then Premier, Mr N K Wran, that Justice Murphy of the High Court was innocent of any wrongdoing. 99    Furthermore, at 637 the Court referred again to the Bread Manufacturers defence and said:

“As we have indicated earlier, this principle in general has no application where the publication is directed to the very issue which has to be determined in the forthcoming trial, the guilt or innocence of the accused person.” (Emphasis added)

100    The references in these two passages to “rarely if ever” and “in general” indicate that no application of a rule of the character identified by Mason P in his reasons for judgment is involved. Rather, their Honours were, in my opinion, referring to the almost inevitable outcome of a balancing process, when the pith and substance of the publication, is specifically directed to the very issue involved in criminal proceedings. 101    To similar effect is the statement in DPP v ABC at 598 where the joint judgment said:

“Where in the course of the ventilation of a question of public concern matter is published which as an incidental but not intended by-product causes some likelihood of prejudice to a person in current or expected court proceedings and, when the court proceedings are criminal, the published matter is not directed to the guilt or innocence of the accused, there is no offence of contempt.
When the published matter is directed to the issue of guilt or innocence of the accused in criminal proceedings and as a matter of practical reality has a tendency to interfere with the due course of justice in those proceedings, then notwithstanding that the published matter is published in the course of ventilation of a question of public concern, a contempt will almost certainly have been committed.” (Emphasis added)

102    The reference to “almost certainly” is similar to the references in the judgment in Wran to “rarely if ever” and “in general”. 103    The actual conclusion of the Court in DPP v ABC was expressed at 612 in the following terms:

“The statement that Mr Justice Murphy had made improper overtures on behalf of a Sydney solicitor, Mr Morgan Ryan, was accordingly made in circumstances where it had a tendency to prejudice the future trial. Being a statement that was directed to the issue of the guilt of the accused the fact that its publication was made in the course of a public debate does not avail the defendant. The Bread Manufacturers defence is not made out because the public interest in freedom of discussion is in the circumstances of the present publication subordinated to the public interest in the administration of justice: Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (at 98-99).”

104    The reference in this passage to the “circumstances of the present publication” indicates that this is the outcome of a balancing exercise, rather than the application of a rule of law which requires a predetermined balance in the case of a publication “directed to the issue of the guilt of the accused”. 105    In Hinch Wilson J referred to DPP v ABC at 43:

“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 (eg as in Director of Public Prosecutions v Australian Broadcasting Corporation (1986) 7 NSWLR 588) 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.”

106    His Honour’s interpretation of the decision in DPP v ABC is that the case concerned the outcome of a balancing exercise, rather than the application of a rule which renders a balancing exercise unnecessary. 107    Deane J at 57 refers to DPP v Wran as authority for the following:

“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 CJ, Hope, Glass, Samuels and Priestley JJA, Director of Public Prosecutions v Wran (1986) 7 NSWLR 616.”

108    The phrase “most difficult, if not impossible” affirms a balancing exercise. 109    To similar effect, at 67, Toohey J refers to both DPP v ABC and DPP v Wran in the context of affirming the need for a balancing exercise. His Honour made particular reference to the “rarely if ever” phrase in the latter decision. 110    In Attorney General for New South Wales v TCN Channel Nine Pty Limited supra at 384 in a joint judgment of Gleeson CJ, Kirby P and Priestley JA, this Court referred with approval to the observations of Wilson J in Hinch at 41-42 to the effect that in undertaking the balancing exercise the law has already tilted the scales. Nothing in this Court’s adoption of that principle, nor in its application to the facts of that case, suggest anything other than that a balancing exercise is involved. I do not understand the judgment to support a predetermined balance contained in a legal rule applicable in specific factual circumstances. 111 In my opinion, the authorities do not support the promulgation of a rule which prevents the conduct of a balancing exercise, in the three circumstances identified by Mason P. There is, in my opinion, no predetermined balance where there is an implication of, or suggestion of, or a canvassing of, guilt. 112 In the years since these decisions of this Court concerning contempt by publication, and particularly since the two judgments of five judge benches in DPP v ABC and DPP v Wran, an important relevant development has occurred. I refer to the recognition of an immunity in the Constitution of the Commonwealth with respect to freedom of communication on governmental and political matters. The law of contempt must adapt to this constitutional immunity, just as the High Court has determined that the common law of defamation (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520) and choice of law rules (John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36), must adapt. 113 In Re Colina; Ex parte Torney (1999) 73 ALJR 1576 at [61] Kirby J indicated that he regarded it as still an open question whether or not the freedom of communication required by the constitution is compatible with the law of contempt. Cases in this Court indicated that there is compatibility. (See e.g. Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (New South Wales Court of Appeal, unreported, 15 September 1994) per Gleeson CJ at p4; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 esp 558-560 per Kirby P and 570-571 per Handley JA; John Fairfax Publications Pty Limited v Doe (1995) 37 NSWLR 81 at 109-111 per Kirby P; see also Theophanous v Herald & Weekly Times Limited (1993-1994) 182 CLR 104 at 187 per Deane J and Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 324-325 per Ipp J and 343 per Anderson J). 114 In Hamersley Iron v Lovell, in the context of considering the implied undertaking to use discovered documents only for the purposes of the proceedings in which they were discovered, Ipp J noted that the parties, the subject of this obligation, may apply for a release from the implied undertaking. His Honour said at 325:

“This enables the court to give due consideration to competing interests between the implied freedom of speech under the Constitution and the need to protect the due administration of justice by preventing public disclosure of discovered documents”.

115    His Honour’s reasoning process confirms the significance, for purposes of compatibility with the constitutional freedom, of the Court being able to conduct a balancing process in each case. 116    In the absence of binding authority which clearly establishes that, in any circumstances other than subjective intention, there is a predetermined balance, this Court should be slow to develop such a principle for the first time because of the constitutional immunity. 117    For the above reasons, I am unable to approach the consideration of Question (v) on the basis of the legal rule which Mason P finds to be determinative.

Analogous Case Law

118    It is neither appropriate nor necessary to attempt to identify what aspects of a balancing exercise are capable of leading to the conclusion that a particular determination of where the balance lay was not open as a matter of law. However relevantly analogous case law - often also employing the formulation “reasonably open” - indicates that the matter must be approached by the application of a stringent test. 119    I have found cases on the following areas of law useful by way of analogy:

(i) Judicial review of administrative decisions for error in non-jurisdictional fact finding.

(ii) The construction of “question of law” in specific statutes.

(iii) Determination of whether facts answer a statutory description.

(iv) Review of the exercise of a discretion on appeal.

120    The first and second errors of law said to have been committed by Barr J in the submission of the Attorney are directed to issues of “weight”. It is submitted that either inadequate weight was given to the prejudice to the criminal trial, or excessive weight was given to the public interest in freedom of communication. In the context of review of administrative decisions, issues of weight are usually characterised as matters for the decision maker and, accordingly, do not give rise to errors of law, either at common law or pursuant to review for such error in a statutory formulation. There are, however, circumstances in which a matter of a weight may give rise to an error of law in the context of judicial review. 121    In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 at 40-41, Mason J said, in the course of a frequently cited passage:

“The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation ([1948] 1 KB at 228).
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power … I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations, or the taking into account of irrelevant considerations but that the decision is ‘manifestly unreasonable’. This ground of review was considered by Lord Greene MR in Wednesbury Corporation ([1948] 1 KB at 230, 233-234), in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.”

122    This passage highlights the exceptional circumstances in which a matter of weight can constitute an “error of law” for purposes of judicial review. As Gleeson CJ and McHugh J said in Eshetu supra [44]:

“In Wednesbury … Lord Greene MR said that what a court may consider unreasonable is a very different thing from ‘something overwhelming’ such that it means that a decision was one that no reasonable body could have come to.”

123    It has long been accepted in this State, that no “question of law” or “point of law”, within the meaning of that phrase as used in statutes such as s37(4)(a) of the Workers Compensation Act 1926, arises if a particular finding was perverse or unreasonable or, relevantly, not ‘reasonably open’. (See Azzopardi v Tasmania UEB Industries Ltd (1985) 4 NSWLR 139 at 156, where Glass JA with whom Samuels JA agreed, referred to a “perverse finding” as equivalent to a finding “that no reasonable person could have made”). 124 In Bruce v Cole (1998) 45 NSWLR 163 at 189C I incorrectly referred to the decision of this Court in Azzopardi, in relation to the proper construction of a statutory formula which limited appeals to “errors of law”. As Fitzgerald JA has pointed out in Hill v Green (1999) 48 NSWLR 161 at [233], the section of the Workers Compensation Act under consideration in Azzopardi in fact used the formulation “point of law”, not “error of law”. The expression “question” or “point” of law is wider than “error of law”. 125    No submission was made to this Court that Azzopardi was wrong or should in any way be qualified. The Attorney submitted that Azzopardi was not relevant because the process of balancing the conflicting public interests, in the course of applying the Bread Manufacturers defence, did not involve anything in the nature of a finding of primary fact or of an inference from primary fact. That may be so. However, even if described as a process of ‘evaluation’, there is a jurisprudential analogy between that function and fact finding, so that the determination of the permissible boundary in one area may inform the same process in the other. 126    Similar issues arise in cases concerned with whether or not certain facts, fully found, answer a particular statutory description. In Hope v The Council of the City of Bathurst (1980) 144 CLR 1, the Court found that there was an error of law where on the facts as found “no other conclusion was reasonably open” (at p9.3) or the actual conclusion of the primary judge “cannot reasonably be supported” (at p10.7). This, however, only arises if the facts as found are necessarily within or without the statutory description. (See e.g. Australian Gas Light Co v The Valuer General supra at 138; Azzopardi v Tasman UEB Industries supra at 157). If reasonable minds may differ there is no error. (See NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Hembury v Chief of General Staff (1998) 193 CLR 641 at 650. 127 This test has a stringency equivalent to that of Wednesbury unreasonableness in the related field. There must be “something overwhelming”. 128    There may always be an extreme case. As Jordan CJ said when holding that a finding that a driver had momentarily fallen asleep did not necessarily mean that the driver was negligent and no error of law was manifest:

“… the question whether negligence has occurred is essentially one of degree. From certain findings of fact it would necessarily follow, as a matter of law, that an accused person had been negligent; from others, that he had not. Between these extremes, however, there lies a broad limbo in which, upon the facts found, the question whether negligence had occurred would depend on the view taken of their relative importance and significance. In such a case, the ultimate determination becomes also one of fact, and a decision either way by a tribunal of fact cannot be said to be wrong in law, unless it appears that the case has been decided because some legal principle has been wrongly applied.” ( Dennis v Watt (1943) 43 SR(NSW) 32 at 32).

129    The process of evaluation involved in balancing conflicting public interests, also has similarities to the exercise of a judicial discretion, where conflicting interests must be considered. 130    In one case involving a discretionary decision, Macrossan CJ held that a question posed in the form of Question (v) did not raise a question of law. In R v Lewis; Ex parte Attorney General supra the Queensland Court of Criminal Appeal had before it a reference from the Attorney General under s669A(2) of the Criminal Code (Qld). Such a reference had to be confined to “any point of law that has arisen at the trial upon indictment of a person”. 131 In Lewis the matters referred arose from the exclusion by the trial judge of evidence which he had found to be unduly prejudicial to an accused in comparison with its probative value. Macrossan CJ held at 300-301:

“… it involves the assertion that the judge could not correctly in law have ruled as he did because the considerations which he was called upon to balance did not lend themselves to being viewed in the way in which he is seen to have viewed them. This only means that his assessment of a factual situation is being challenged by attempting to describe the challenge in different terms.
There is no dispute that the learned judge purported to exercise a discretion to exclude certain evidence because of its disproportionate prejudicial effect as compared with its slight probative value. Also, no challenge was made to the correctness of his expression of the test under which evidence can, in a criminal trial, be properly excluded by a trial judge.”

132    The exercise of the discretion to reject evidence required the Court to balance the two countervailing factors, namely probative value on the one hand and prejudicial effect on the other hand. Macrossan CJ emphasised that the drawing of the balance was a matter for the trial judge and concluded at 301:

“… the task of considering the balance and making the relevant assessment is committed to him. It cannot be accepted that if the judge applies the right test and directs his attention to the dual tendency inherent in the evidence he will be in error in point of law in the ruling that he makes in consequence.
… Given that the disputed items can be regarded as having some probative value in circumstantial support of the Crown case and at the same time have independent prejudicial effect, then the exercise of the discretion is open to be considered by the trial judge to whom the function is entrusted. It is an assessment of fact which is involved in considering the relative force of these two aspects. Even if the judge reaches a conclusion which it might be said could not reasonably be reached then although he has erred, his error is one of fact and not law . When a jury verdict is set aside on the basis that it is perverse, the matter having been left to them because there was some evidence to support their conclusion even though the overwhelming effect of the evidence was to the contrary, it is a matter of fact, not law, which moves the appeal court to intervene: see e.g. per Lord Diplock in Attorney-General for Northern Ireland’s Reference [1977] AC 105 at 133F and per Dixon CJ in Hocking v Bell (1945) 71 CLR 430 at 497.” (Emphasis added)

133    His Honour’s express reference to a conclusion which “could not reasonably be reached” is the formulation of the question presently before the Court. The process of balancing the probative value of evidence against its prejudicial effect, appears to me to be of the same jurisprudential character as the balancing exercise to be undertaken with respect to the Bread Manufacturers defence. 134    To similar effect is the reasoning in R v Foggo, ex parte Attorney-General [1989] 2 Qd R 49, also under s669A of the Criminal Code (Qld). That case involved the exclusion of evidence at a criminal trial on the basis that it had been obtained illegally or unfairly. Thomas J with whom Andrews CJ and de Jersey J agreed said at 51:

“Whether his Honour exercised the discretion wrongly, fell into error in attributing excessive weight to inappropriate factors , or took an unrealistic view of the facts is not for us to determine.” (Emphasis added)

135 I do not understand these decisions to suggest that there are no cases in which the exercise of a discretion would not be legally erroneous. Again, however, there would have to be “something overwhelming”. 136 In my opinion, the stringency of the test revealed in these analogous bodies of case law, is entirely appropriate in a context such as s101A where the scope of the words “question of law” must be determined for purposes of precedent, with no implications for the particular case in which the question arose. If Question (v) is understood in this way, it raises a question of law.

Was the Finding Open?

137 In support of the submission that the conclusion of Barr J was not reasonably open as a matter of law, the Solicitor General referred to the three errors which I have summarised in par [4] above. 138 It is convenient to deal first with the third of the alleged errors of law, set out in par [4] above. The Claimant Attorney submits that Barr J erred in finding that the prejudicial effect of the articles was “incidental and unintended”. This is a matter which depends on findings of fact about the motivation of the publisher of the impugned material and, also, about the relationship between the specific matter said to constitute the interference with the administration of justice and the balance of the publication. These are classic matters for judgment. They give rise to what is often referred to as matters of “fact and degree”, although I acknowledge the imprecision of the words. (See Craig supra 158-159; Endicott supra at 301-302). A more appropriate formulation is that this aspect of his Honour’s reasons was capable of being decided either way, in the context of the particular publication and the specific circumstances in which the publication occurred. This is not an issue of a character which has any value as a precedent. It is not a “question of law” within the meaning of s101A. This alleged error cannot, in my opinion, be relied on. 139 The first and second of the alleged errors are capable of giving rise to a question of law, in the way I have explained the scope of the question, i.e., that the ultimate determination was not open as a matter of law. Is there “something overwhelming”? 140 Barr J did not understate or underestimate the impact, by reason of the publication, on the fair trial to which the subject of the articles was entitled. His Honour held:

“There could scarcely be more prejudicial statements than those contained in the articles about a man facing charges concerning the supply of heroin. He is described as a drug boss and a top heroin distributor, a ‘Mr Big’. And is said to be targeted by police as the country’s largest heroin distributor. He is said to have a network which has become the major outlet for heroin in western Sydney. All those statements appear on the front page of the newspaper.”

141    His Honour went on to refer to other aspects of the article to similar effect and concluded:

“The statements I have summarised are highly prejudicial. If any juror at Mr Duong’s trial remembered any of them he would not in my opinion receive a fair trial.”

142    His Honour also concluded:

“The striking and unusual way in which the articles were presented made them more memorable than ordinary leading newspaper articles. Mr Duong’s photograph on the front page was unusually large, in colour and of good quality. It was repeated on page 7 and on the same page appeared a different good quality colour photograph of Mr Duong, taken from a different angle. Both photographs were of the face only. They were likely to assist in recognition.”

143    For these and other reasons his Honour concluded:

“… I am satisfied beyond reasonable doubt that as a matter of practical reality the articles had the tendency to interfere with the due course of justice at Mr Duong’s trial, notwithstanding that it was not due to take place for a further five months.”

144    On the other side of the balance was the public interest to be served by the publication. His Honour summarised the articles, inter alia, in the following way:

“The persons controlling crime, particularly drug crime, were changing. The old controllers had passed on for various reasons. The new ones included Mr Duong and Duncan Lam. A cultural and financial revolution had taken place, resulting in that change. The Federal Police Commissioner estimated that between two and three thousand kilograms of heroin were imported annually, worth up to $3 billion and that only 220 kgs had been ceased [seized] in the last year. The Federal Police could investigate only one in six or seven major heroin trafficking syndicates, the result of the size and world wide nature of the drug trafficking industry and the inadequacy of law enforcement resources in Australia. The government had pegged or reduced the amount of money available for law enforcement. Chinatown was the seat of major heroin dealing and Cabramatta was the place were it was distributed by Vietnamese persons. Mr Duong rose to prominence after the gaoling of Salvatore Lapa in 1993.”

145    As his Honour indicated, the thrust of the articles and their overall purpose plainly dealt with matters of substantial public interest. 146    His Honour went on to indicate that although Mr Duong’s position and role was discussed “there was no discussion of the facts or circumstances of the charges pending against him. His guilt or innocence of those charges was not mentioned”. His Honour indicated that a statement to the effect that although a person had committed similar offences could prejudice a trial it was “a less serious thing to say than that the accused is guilty of the very offences for which he is to be tried”. His Honour concluded that that particular conclusion was not implied in the material complained of. 147    His Honour concluded finally that:

“The articles were part of a substantial series of articles dealing with subject matter of substantial broad public interest. The trial was likely to raise narrower issues which were only incidental to those canvassed in the articles.”

It was for this reason that his Honour found that the detriment to the trial was outweighed in the specific set of circumstances by the public interest in the freedom of communication.

148 In my opinion the content of the publications to which his Honour referred, the context of the charges and the period before the trial, was such as to permit a conclusion in all the circumstances of the character to which his Honour came. No doubt other Judges may have balanced the conflicting public interests in a different way. That is not, however, a pertinent question for the determination of a question of law such as that before this Court. 149 The reasons given by Barr J were appropriate and apt for the purposes of coming to the conclusion to which his Honour came. His Honour had before him a publication containing a clear and prominent implication of guilt of criminal conduct by a person of the same character as certain specific charges lain against that person. On the other hand, that person’s involvement in that conduct was pertinent to a wide ranging, serious in-depth journalistic investigation of a major social problem with significant public policy implications. It cannot, in my opinion, be said that only one answer was open. 150 My conclusion, accordingly, is that Questions (i) to (iv) should be answered “Decline to answer”. Question (v) should be answered “Yes”. 151 MASON P: Invoking s101A of the Supreme Court Act, the Attorney General has submitted five questions to the Court of Appeal. They are said to arise from and in connection with contempt proceedings in which the alleged contemnor (the opponent) was found not to have committed contempt. 152 Proceedings were brought in the Common Law Division by the Attorney General against the respondent. The summons sought a declaration that the opponent was guilty of contempt in publishing certain material in a Sydney daily newspaper of 27 October 1998. The articles contained a number of strong statements about the conduct of Duong Van Ia whose photograph appeared on the front page and who was variously described as “the top heroin distributor”, a “drug dealer”, “the current drug csar”, a “drug boss”, “your classic criminal” and “the country's largest heroin distributor”. He and another man were said to have “carved out a giant portion of Australia's 3 billion dollar heroin trade, building a network from Southern China to Sydney”. The article referred to the fact that Duong had been charged with criminal offences and that he was yet to face trial for them. 153 At the time of publication, Duong had been committed for trial in the District Court on charges of supplying 223 grams of heroin and with being knowingly concerned in the supply of 222 grams of heroin. The trial was then fixed to commence on 23 March 1998. 154 The summons was heard by Barr J and it was dismissed with costs on 9 April 1999 [1999] NSWSC 318. 155 It is hardly surprising that the learned judge concluded that he was satisfied beyond reasonable doubt that as a matter of practical reality the articles had a tendency to interfere with the due course of justice at Duong's trial, notwithstanding that it was not due to take place for a further five months. The potential ramifications of the article were described as follows:

... What was known was that an accused person was going to be tried on charges of supplying heroin. The material complained of asserted that that was what he was in the business of doing. There is an obvious risk of prejudice where an accused person is charged with an offence and a jury are informed that he has committed just such an offence in the past. That is why such material is rigorously excluded from the jury. Hinch v Attorney General (Vic) (1987) 164 CLR 15. It is ordinarily appropriate to stop the case if such material comes to the jury's attention.

156    Barr J held that there could scarcely be more prejudicial statements than those contained in the articles. “If any juror at Mr Duong's trial remembered any of [the allegations] he would not in my opinion receive a fair trial.... [No] direction to a jury could cure the prejudice flowing from these articles.” 157    Barr J then addressed the “public interest defence” referred to by Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR(NSW) 242. The defence is capable of application to potential interference with criminal proceedings (see Hinch). The articles dealt with matters of substantial public interest. Barr J concluded that “it is reasonably open to say that the detriment to the trial was outweighed by the public interest in the freedom of communication”. The summons was dismissed because the judge was not satisfied that the plaintiff had negated the defence of public interest. 158    The critical reasoning is at pars 128-134 of the judgment. To this I shall return.

Questions submitted by Attorney General

159    In the summons filed in the Court of Appeal, the Attorney General presented five questions for determination:

( i) Whether His Honour, in finding the charge of contempt not to be made out, used the correct test in the application of the decision in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR(NSW) 242 by saying that the “ultimate practical question is whether it is reasonably open to say that the detriment to the trial is outweighed by the public interest in freedom of communication.”

(ii) If the decision in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd requires a balancing of the prejudice to the trial of the accused and the utility of a particular discussion of public affairs, whether his Honour in fact carried out such a balancing exercise.

(iii) Whether the principles set out in Ex parte Bread Manufacturers; Re Truth and Sportsman Ltd prevent a finding of contempt in circumstances where, as His Honour found, the articles in question stated that the accused was charged with the supply of heroin and also stated that the accused was in the business of supplying heroin.

(iv) Whether his Honour was correct in finding that it was necessary for the plaintiff to negate the “defence of public interest” before a finding of contempt could be made in relation to the publication in question.

(v) Whether it was reasonably open to his Honour to find that the detriment to the administration of justice (which his Honour held to be present) was outweighed by the public interest in the freedom of communication of the material contained in the publication.

160    The questions are drafted infelicitously having regard to the nature of the Court’s jurisdiction and the real issues thrown up in this matter.

The Court of Appeal’s jurisdiction

161 Section 101A provides:

101A Question of law concerning criminal contempt may be submitted to Court of Appeal
(1) At any time after the conclusion of contempt proceeding, in which the alleged contemnor is found not to have committed contempt, the Attorney General may submit to the Court of Appeal any question of law arising from or in connection with the proceedings.
(2) The Attorney General must submit with the question to be determined a statement of the circumstances out of which the question arose, and thereafter must furnish such further statement as the Court of Appeal may require.
(3) The Court of Appeal has jurisdiction to hear and determine any question submitted to it under this section.
(4) The determination of the Court of Appeal of the question submitted does not in any way affect or invalidate any finding or decision given in the contempt proceedings.
(5) The alleged contemnor is entitled to be heard on the question submitted and, if it appears that the alleged contemnor does not propose to be represented, the Attorney General is to instruct counsel to argue the question before the Court of Appeal on behalf of the person.
(6) The reasonable costs of legal representation of the alleged contemnor in proceedings under this section are to be paid by the Crown.
(7) Proceedings under this section are to be held in camera, except that a legal practitioner may be present at the proceedings for the purpose of reporting the case for any lawful purpose of the Council of Law Reporting for New South Wales.
(8) A person:
(a) must not publish any report of any submission made under subsection (1), and
(b) must not publish any report of proceedings under this section so as to disclose the name or identity of the alleged contemnor.
(9) Any publication in contravention of subsection (8) is punishable as contempt of the Court.
(10) In this section:
alleged contemnor means the person charged with contempt in contempt proceedings.
contempt means contempt of the Court or of any other court.

contempt proceedings means proceedings before the Court in a Division for the punishment of contempt.

(11) This section applies to criminal contempt only, and does not apply to civil contempt.

162 A challenge to the constitutional validity of s101A(7) has been considered by the Court differently constituted. 163 Section 101A mirrors the more general provisions of s5A(2) of the Criminal Appeal Act, both in language and purpose. 164 It is significant that the sections speak of a “question of law”, not an “error of law”. This is in keeping with their obvious function, which is to arm the appellate court with power to “determine” the question, but not to reverse the acquittal. So much is established by R v J (1987) 9 NSWLR 615. Lee J said (at 616):

The purpose of s5A(2) is to provide a procedure whereby the court can pronounce upon a question of law raised that is or may be of importance in the conduct of criminal trials in this State. The mere fact that a trial judge has made an error of law will not be sufficient. The question of law raised should be one of substance, the significance of which to the criminal law does not come to an end when the trial in which it arose concludes.

165    Hunt J said (at 626):

It has been said time and again that the procedure laid down by the Criminal Appeal Act 1912 , s5A(2), whereby following an acquittal the Attorney-General may submit questions of law arising at or in connection with the trial for the determination of this Court, is not to be used simply to resolve such a question which has importance only in relation to the trial which has taken place. The decision of this Court upon such a question does not affect the acquittal obtained, and it cannot lead to a new trial of the person acquitted.
The purpose of the procedure is to provide a precedent by which guidance is furnished in relation to other trials in the future. There must be involved a question of sufficient substance as to justify the adoption of the procedure, and questions of transitory or minimal significance in relation to the criminal law generally or questions which do no more than establish that the trial judge in the particular case made some error of law do not justify either argument before or decision by this Court pursuant to s5A(2).

166    It follows that it would be inappropriate for the Attorney General to bring before the Court, as a question of law, whether there was evidence of a particular ingredient of a charge to support a conviction, unless that evidentiary point threw up some point of general principle (R v J. See also R v S (1953) 53 SR(NSW) 460). A fortiori with factual errors. 167 In support of a wider interpretation of s101A, the Solicitor General submitted that the Court could assume that the Attorney would not exercise the power to refer questions irresponsibly; and that the ultimate sanction was for the Court to decline in its discretion to address inappropriate questions. The former proposition may readily be accepted. The second proposition is more debatable (cf R v Brown (1989) 17 NSWLR 472 at 476) but it is unnecessary to resolve it in the present case. 168 The authority of R v J and the reasons which underpin it reinforce the point of construction: the Court’s jurisdiction depends upon a question of law genuinely arising from or in connection with the proceedings yet having qualities of general significance, beyond the particular case.

Some general principles relating to the Bread Manufacturers defence

169    The onus rested at all times on the prosecutor to prove the charge of contempt beyond reasonable doubt. This included negating the Bread Manufacturers defence. 170    The prosecutor was required to establish beyond reasonable doubt that the publication had “as a matter of practical reality, a tendency to interfere with the course of justice in a particular case” (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370). In Hinch Mason CJ (at 27-28) thought that a test of “substantial risk of serious interference” would best reconcile the conflicting demands for a free press and for a fair trial, whilst conceding that it was synonymous or virtually synonymous with other authoritative formulations. Wilson J (at 34) spoke of a need to demonstrate a “real and definite tendency to prejudice or embarrass pending proceedings”. Deane J (at 47) suggested “clear tendency” as a suitable paraphrase. See also per Toohey J at 70. 171    The foundational judgment of Jordan CJ in Bread Manufacturers contains the following passage (at 249-50):

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.

172    It would appear that the defence is not open to a person proved to have intended to interfere with the administration of justice (Hinch at 40, 43 per Wilson J, at 52-3 per Deane J, at 66 per Toohey J, at 85 per Gaudron J). No such intent was suggested in the present case. 173 In upholding the conviction for contempt in Hinch, the High Court pointed out that the fourth sentence in the critical passage (“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”) is not a definitive statement of the defence, or even a necessary test of the defence. Thus, Mason CJ said (at 22-3):

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 CJ 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.
The judgments in BLF [ Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25] 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.
Although the judgments referred to it, it was not regarded as a decisive criterion of the non-existence of contempt.


(See also per Mason CJ at 26.7. 28.4. 29.5.)

Wilson J said (at 42):
In Bread Manufacturers Jordan CJ 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 …. 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.
Toohey J said (at 66):
While the judgment of Jordan CJ 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 “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. (citations omitted)

174    These passages demonstrate that reference to mere incidentality is not determinative. Indeed it is capable of diverting attention away from the true issue. I return to this point in my discussion of the Attorney General’s third challenge to the decision below. 175    The Bread Manufacturers test requires evaluation of competing public interests, usually described as the interest in a fair trial and the interest of the public to be informed about vital matters. That evaluation is not the exercise of judicial discretion (Hinch at 43-44 per Wilson J, at 77 per Toohey J). Wilson J (at 43-44) spoke of the evaluation of competing matters of fact, to be decided according to the requisite standard. At first blush, these passages sit uneasily with Gaudron J’s references (at 85, 87) to the evaluation being a question of law. However, the reconciliation may lie in the common recognition that the evaluation must be undertaken “consistently with accepted judicial principle” (per Wilson J at 43) having regard to particular facts such as the nature and extent of publication and its timing. Whatever the correct label, “much more than simple fact-finding is involved” (Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650 at 683 per Priestley JA). 176 In my view, it is unnecessary to decide whether the balancing of the competing public interests identified in Bread Manufacturers is itself a question of law. Nor is it pertinent to exegete the words “reasonably open” in the fifth question as formulated by the claimant to see if they ever carry a question of law. That is because there may be cases where the method in which the balancing is done and/or the outcome is such that the Court can identify a question of law capable of attracting the appellate jurisdiction invoked in this case. To take an extreme example, scrupulous application of Bread Manufacturers would expose error of law if the trial judge disclosed that the balance was affected by the race or gender of the person facing trial. For reasons which I shall develop, I have concluded that an otherwise unexceptional application of Bread Manufacturers exposed two error of law through a combination of reasoning and outcome and that the questions of law involved attract the jurisdiction under s101A of the Supreme Court Act. 177 Each of their Honours in Hinch contemplated that there would be situations where the balance would inevitably fall one way, against the contemnor. I shall return to the key passages after a digression to examine the concept of a fair trial as developed in recent case law. This concept provides the raison d’etre for the law of contempt and (in my view) explains why Hinch does not stand for the proposition that any type of interference with a fair trial is capable of justification by reference to the Bread Manufacturers defence. It explains why some types of interference are incapable in law of such justification.

The right to a fair trial

178    The right to a fair trial according to law by an independent and impartial tribunal is a basic human right recognised as such in Article 10 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights. The nature of the right to a fair trial was described in the following terms by Isaacs J in R v Macfarlane; Ex parte O'Flanagan & O'Kelly (1923) 32 CLR 518 at 541-2:

That such a right exists as a personal right seems to me so deeply rooted in our system of law and so elementary as to need no authority to support it. It is a right which inheres in every system of law that makes any pretension to civilization. It is only a variant of the maxim that every man is entitled to his personal liberty except so far as that is abridged by a due administration of the law. Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle. And if the right be admitted, it would be an empty thing, unless the law adequately protected it.

179    In his keynote address to the Fifth International Criminal Law Congress in Sydney in 1994, Sir Anthony Mason referred to “the central precept of our criminal law ... that no person shall be convicted of a crime otherwise than after a fair trial according to law” (The Hon Sir Anthony Mason, “Fair Trial” (1995) 19 Crim LJ at 7). 180    It has been pointed out that the right to a fair trial is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial, for no person can enforce a right to be tried by the state (Jago v District Court (NSW) (1989) 168 CLR 23 at 56-57; Dietrich v The Queen (1992) 177 CLR 292 at 299). This correctly emphasises that it is the obligation of the State to secure that right if it wishes to prosecute. Dietrich saw the High Court declaring this negative right to be a matter of substance, not mere form. In Gaudron J's words (at 362):

The expression 'fair trial according to law' is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness!

181    Infringements of the right by agents of the State, such as police, prosecutors, gaolers and those asserting public interest immunity may lead to appropriate remedies. The remedies include adjournment, change of venue, stay and quashing of conviction. Many rules of evidence and procedure serve that right. So too does the overarching obligation of procedural fairness or natural justice. The law of contempt offers the remedies of injunction and criminal punishment to prevent or deter acts having the tendency to interfere with the fair conduct of trials. 182    The recent development of the remedy of stay for abuse of process illustrates how judges use their perception of public confidence in the administration of justice in order to mould remedies in support of the right to a fair trial. In Jago v District Court (NSW) at 29-30 Mason CJ quoted with approval the judgment of Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour [1980] 1 NZLR 464 at 481 where his Honour pointed out that "due administration of justice is a continuous process, not confined to the determination of the particular case". Richardson J went on to say:

It is contrary to the public interest to allow [public confidence in the administration of justice] to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.

See also Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 133-135.

183    The content of the right is fashioned by the purpose of the criminal law and the processes it uses to achieve its ends. The criminal law has the dual functions of convicting the guilty and acquitting the innocent (including those not proven guilty beyond reasonable doubt). For better or worse it operates in a highly-charged atmosphere. Of all branches of law, it is the one in which the public has the greatest concern and participation, yet it is the one most needful of protection from hysteria or mob influence. It is the constitutional duty of the judicial arm of government to apply the criminal law with fearless independence. 184    A verdict of guilt and ensuing punishment must be the product of a fair trial. The rule of law can settle for nothing less. Trial by media cannot be tolerated in a civilised society. It is the antithesis of the private and public interests in fair trial. 185    It is irrelevant that the person who is the subject of media attention is truly guilty. In Attorney-General for New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368, the Court comprising Gleeson CJ, Kirby P and Priestley JA said (at 382):

The publication of matter may have a real and definite tendency to prejudice or embarrass pending proceedings regardless of whether the person about whom the matter is published is guilty. Mr Mason’s right to a fair trial was none the less because the prosecution case against him was strong, and the public interest in the due observance of the processes of the criminal justice system does not wax and wane with the weakness or strength of the defence case. A notion that the rules relating to contempt of court somehow apply with less rigour to the case of a person against whom there is a very strong case would reflect a fundamental misunderstanding of the nature and purpose of those rules.
The centrality of the right to a fair trial in Hinch

186    Hinch established that the Bread Manufacturers principle is capable of extending to interference with criminal proceedings. A person who has trenched upon an accused person’s right to a fair trial may avoid conviction for contempt in appropriate cases where the interests of the free dissemination of information are strong. But some types of interference are so incompatible with the right to a fair trial on a criminal charge that the defence is incapable of being attracted on the facts. 187    Bread Manufacturers involved a potential contempt of a civil trial in circumstances where the newspaper’s criticism of a company’s price-fixing activities started before a libel and conspiracy action was commenced against that company by a third party. 188    Hinch involved a criminal trial, and the contempt conviction was affirmed. In Hinch, the contemnors broadcast by radio in Melbourne. Father Glennon, an ordained priest, had been charged with serious sexual offences involving young people and he was bailed to appear at the Melbourne Magistrate’s Court. A gap of ten months was expected before any trial by jury. The theme of the broadcasts was to highlight the inappropriateness of Glennon continuing to occupy the position of governing director of a Foundation that organised children’s camps. To emphasise this perfectly good point, Mr Hinch referred to Glennon’s prior conviction and sentence of two years imprisonment for indecent assault on a young girl. The disclosure of the prior conviction was in a context strongly suggestive of guilt in the current charges (see at 29 per Mason CJ, at 45 per Wilson J, at 58 per Deane J, at 76 per Toohey J, at 88 per Gaudron J). In Toohey J’s words (at 76), the broadcasts “prejudiced [Glennon’s] chances of obtaining a fair trial by their thinly veiled assertions of guilt”. 189    Nothing in the reasoning in Hinch suggests that the broadcasting of information proven capable of being heard and retained by potential jurors in an imminent criminal trial known to the broadcaster would not be a contempt where the information implied or suggested the guilt of the accused. I am unaware of any reported case where a publication with the appropriate tendency has not been held to constitute a contempt if it implied or suggested the guilt of the accused. 190    There are indeed strong statements to the opposite effect in several of the judgments in Hinch. This appears most clearly in the following passages in the judgment of Deane J (emphasis added and citations omitted):

(at 48-9) … 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.
(at 52) [Mention should be made of] 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 (eg 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. …
(at 57) 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.
(at 58-9) … 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 pretrial and prejudgment.
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.

191    Mason CJ held (at 26-7) that the importance of the issue that led to the broadcasts:

… is not so fundamental and paramount as to entail a disregard of the essentials of a fair trial. No doubt Fr 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 Fr 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.

192    Wilson J stated (at 37) that:

… 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.
Wilson J later said (at 41-2) that:

… it is important to emphasize that in undertaking a balancing exercise the court does not start with the scale 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….

Later (at 43) he said:
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 (eg as in Director of Public Prosecutions v Australian Broadcasting Corporation (1986) 7 NSWLR 588) 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.

193    See also Toohey J at 67. 194    Gaudron J identified the due administration of justice as one of the matters of fundamental importance which the Bread Manufacturers defence was designed to protect (at 83, 85-86). She held that the evaluation of competing public interests was a question of law (see par 24, above). Later she said (at 86-7, emphasis added):

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 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 BLF Case (1982) 152 CLR 99, Mason J, commenting on the administration of criminal justice and the dangers of trial by media, said:
“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.”
Accordingly, in my view, the public interest to which the broadcasts were referable was not an interest which could take precedence over, or even by equated with, protecting the administration of criminal justice from the risk of interference , encompassing as it does, the public interest in the maintenance of the right of every accused person to have a fair trial.

At 88-9 she said:

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.

195    These passages show the justices to have been vitally concerned to demonstrate the limits of the Bread Manufacturers defence. In my view, they establish that the defence cannot be invoked to excuse a publication proved beyond reasonable doubt to have the requisite tendency to interfere with the fair trial of a pending criminal charge where the interference consists of implication or suggestion of guilt or the canvassing of matters directly related to the central issue of guilt. The cautious statements of a principle operating “in general” or a permission applying “rarely if ever” leave ample room for Bread Manufacturers to operate in situations where the accused person’s rights are not trenched upon in the direct manner I am addressing (cf Registrar of Court of Appeal v Willessee (1985) 3 NSWLR 650) or in circumstances such as a major constitutional crisis or imminent threat of nuclear disaster to which Mason CJ referred in Hinch (at 26). In times of peace, there can be no justification for trial by media that trenches upon an accused person’s right to a fair trial by the implication or suggestion of guilt in a manner and time that has the proven requisite tendency. Certainly this is the case where it is possible to conceive of ways in which the message of the articles under consideration could have been given without direct interference with Mr Duong’s right to a fair trial. 196 Nothing in earlier decisions of this Court cuts across this analysis. Indeed there are statements that clearly support it. Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 was a case in which contempt was found in relation to a publication that had suggested that Schneidas, a man shortly to be tried for murder of a prison officer, had previously assaulted two other officers. The publication had implicitly identified him and attributed earlier crimes of violence to him. The persons responsible for the broadcast were convicted of contempt, with the Bread Manufacturers defence being rejected in the particular circumstances. Moffitt P (with whose reasons Hope JA agreed) said (at 151):

There is no authority that to broadcast to the public by newspaper, radio or television that a man has prior convictions, or has committed past crimes, after he has been charged ceases to be contempt because it is published in the course of some legitimate discussion upon a matter of public interest.

197    In Registrar of Court of Appeal v Willesee, a Bread Manufacturers defence defeated a prosecution for contempt by interference in the course of justice in a criminal trial. However, the facts were far removed from the present. The publication inferred that the accused was of bad character, but it did not refer to the crime which he was alleged to have committed or otherwise discuss his guilt in that area. Kirby P described the publication in question as “unintended, accidental and justifiable publication of matter which happens to impinge upon and prejudice a trial” (at 653). Hope JA discussed Bread Manufacturers at some length and his reasons on this matter were agreed with by Kirby P (at 660) and generally by Priestley JA (at 681). Hope JA referred (at 677-8) to the earlier Willesee decision and said (at 678):

That is an entirely different case from the present one, and in my opinion what Moffitt P said about the application of the principle enunciated by Jordan CJ should be understood as directed primarily to that type of case.

198    In Director of Public Prosecutions v Wran (“Wran”) (1986) 7 NSWLR 616 at 629 the Court comprising of Street CJ, Hope, Glass, Samuels and Priestley JJA said (emphasis added):

Stemming from the well-known statement by Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR(NSW) 242 at 249; 54 WN 98 at 99, 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 of the Court of Appeal v Willesee . The present is a case where the relevant part of the publication was directed exclusively to that issue and no amount of public concern with the guilt or innocence of Mr Justice Murphy would justify the publication ; indeed that public concern strongly vindicates the law that prohibits any such publication.

This decision was cited with approval in Hinch by Toohey J (at 67).

199    Finally, there is the decision in Attorney-General for NSW v TCN Channel Nine Pty Ltd, a case where a television station broadcast pictures of a man (Mason) in handcuffs pointing out places where he had “allegedly admitted” to two murders. The Bread Manufacturers defence was rejected. It was recognised that there were matters of public interest involved in the news item about an arrest that ended a widely-publicised manhunt for a dangerous killer. Nevertheless, it was held that the public interest in these matters could have been satisfied without the presence of the features which rendered the news item offensive to the law of contempt. The reference in the news item to the subject matter of the charges was central and not merely incidental to some wider topic of public discussion. The case was said to be quite unlike Registrar of the Court of Appeal v Willesee and much closer to Hinch. Applying Hinch, the Court held (at 384, emphasis added) that it was:

… impossible to hold that in the circumstances the various considerations of public interest referred to on behalf of the Opponent prevent the conclusion that the publications constituted serious and punishable contempts.
In a case such as the present, the principles of law in question do not exist merely to protect the private interests of a person such as Mr Mason in securing a fair trial in respect of his alleged crimes. They protect the interest of the public in having persons who are accused of crime in our community dealt with by the system established for the administration of justice according to law. Trial by media has no place in that system.

200    See also Re Attorney-General for Manitoba and Radio OB Ltd (1976) 70 DLR 3d 311, Atkins v London Weekend Television Ltd (1978) SLT 76, Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563.

The appellant’s challenges to the judgment below

201    The five questions referred to the Court of Appeal are set out above. 202    The Attorney General submitted that his Honour made three errors of law in balancing prejudice to the administration of criminal justice and prejudice to the freedom of communication to discuss a matter of public interest.

(i) Implication of Duong’s guilt

203    First, it was submitted that his Honour erred in failing to attach sufficient weight to the seriousness of the prejudice flowing from the articles. In particular, it should have been found that Duong's guilt was implied. His characterisation as a “Mr Big” of the drug world as described in the article carried the implication that he was guilty of the pending charge of supplying heroin. The Court was referred to statements in Hinch that Glennon’s guilt of unidentified past cases of child abuse carried the implication of guilt of the offences with which he had been charged (see especially at 31, 53-54, 58, 71, 76). The seriousness of implied assertions of guilt and the difficulty of envisaging circumstances in which the interest in freedom of discussion 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 are emphasised throughout the judgments in Hinch (see esp at 26-27, 43, 57-59, 71, 86-88. See also Wran at 629, The Queen v Glennon (1992) 173 CLR 592 at 612). It was submitted that, if Barr J had accorded proper weight to the seriousness of the prejudice involved in the publication, his Honour would have concluded, as a matter of law, that the prejudice could not be outweighed by any countervailing public interest, especially in circumstances where the subject article dealt with a relatively narrow issue of public interest, namely the identification of Duong as the nation's largest drug dealer. 204 Barr J made some general remarks about Bread Manufacturers. He summarised the content of the articles, holding (at pars [128] and [131]) that they dealt with matters of substantial public interest and that the naming of Duong was an integral part of that discussion. 205    His Honour discussed (at [128]-[130]) whether the articles implied Duong’s guilt of the pending charges. At [130] he said:

If the articles had been about the commission by Mr Duong or others of particular, named offences, there might have been substance in [the Attorney General's submission that the articles implied that Duong was guilty of the charges which he was facing] . But I think that the articles are really about personalities and control. Although a statement, in the context of the trial of an accused for a particular offence, that that accused has committed similar offences may prejudice the accused at his trial, that is a less serious thing to say than that the accused is guilty of the very offences for which he is to be tried. No such thing is implied in the material complained of.

206    The conclusion that the articles did not imply Duong’s guilt “of the very offences charged” is a decision in point of fact and as such outside the scope of appellate review in this application. However, the conclusion was a deceptively narrow and insecure springboard for the later discussion about the incidental and unintended references to guilty conduct which, in my view, betrays error of law. This is addressed with reference to the third of the Attorney’s challenges.

(ii) Interference with Duong’s right to a fair trial by suggesting guilt

207    Secondly, it was submitted that the public interest in the publication of the article was not capable, as a matter of law, of overriding the identified public interest in the administration of justice. This submission did not rise so high as to contend that the public interest in the integrity of the criminal justice system could never yield to the public interest in the open discussion of matters of fundamental importance to Australian society. Stated at that level of generality, the proposition is precluded by Hinch. The Attorney nevertheless submitted that the particular public interest advanced in the newspaper article had of necessity to yield to the particular public interest in the integrity of the criminal process then set in motion as regards Mr Duong when one had regard to the content of the article. The highly prejudicial allegations contained in the newspaper article directly interfered with Mr Duong’s right to a fair trial by suggesting his guilt through the participation in the very types of activities which would establish guilt on the pending charges. It was submitted that it was not reasonably open for his Honour to say that the detriment to Duong's trial was outweighed by the public interest in the naming of him as a person involved in the illicit drug industry. 208    I accept this submission. 209    I have stated my understanding of the general principles. These articles were proven to have interfered with Duong’s right to a fair trial with an immediacy and in a manner that made it impossible to accept the proffered justification. At the very least they suggested Duong’s guilt and they canvassed matters central to the issues in the forthcoming trial. The conclusion that they did not imply guilt “of the very offences for which he [was] to be tried” may have been technically correct, at least to the trained lawyer’s eye. But the law of contempt proceeds on the basis that some jurors may be susceptible to being diverted from their sworn duty if types of highly prejudicial information are put before them. The information about Duong in the articles was clearly of this nature. It was irrelevant that there may have been an overwhelming Crown case. And it in no way lessened the contempt that the incidents written about may not have been those which were the subject of the charges. To state that an accused is a hired hitman is so potentially damaging that it cannot be justified by suggesting that the accused may be innocent of the particular contract killing for which he stands charged, any more than publishing details of a past conviction for sexual abuse of a child can be disconnected from an upcoming fresh charge of a similar offence (cf Hinch). 210    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 Director of Public Prosecutions [1935] AC 309 at 317). Evidence of criminal propensity can be practically as damaging and this explains the extreme caution with which it is treated in the presence of juries. Assertions by the media in the confident and dogmatic tones of the articles in question in this case tend to fall somewhere in between. However, there could be no doubting of Barr J’s conclusion that there could scarcely be more prejudicial statements than those found in the newspaper articles. 211 It was not suggested that the importance of discussing the issue raised by the article at the time of publication of the article was such that the adjournment or staying of the criminal trial were relevant options for accommodating competing public interests. Contrast the extreme examples of a major constitutional crisis or an imminent threat of nuclear disaster mentioned by Mason CJ in Hinch (at 26).

(iii) Reference to “incidental and unintended” prejudicial effect

212    Thirdly, it was submitted that Barr J erred in finding that the prejudicial effect of the articles was “incidental and unintended”. The respondent was aware of the pending charges (this fact being mentioned in the article itself). It could not be said that the article continued public discussion which had already begun, since its whole thrust was to name Duong as a “Mr Big” and to expose his wickedness to public view. Since the very issue to be decided in the pending litigation, namely whether or not Duong was a person who had engaged in the supply of heroin, was canvassed extensively in the articles, it was not reasonably open to conclude that the serious prejudice to Duong's trial occasioned by the publication was an incidental by-product of a discussion of a matter of public interest. 213    I accept this submission. 214    Merely because the publication of information worthy of public interest has an incidental or unintended impact upon the fairness of a forthcoming trial will not ensure the success of a Bread Manufacturers defence. 215    This point is established firmly by Attorney-General (NSW) v Willesee where each member of the Court (Moffitt P, Hope JA and Mahoney JA) rejected the proposition advanced by the defendants that the contempt was excused because the references to Schneidas were “fortuitous” or because the charges against Schneidas did not provide the occasion of the publication. As Moffitt P put it (at 153):

To publish matter which has a real and definite tendency to prejudice or embarrass pending criminal proceedings is contempt. It is not to the point that the publisher is then dealing with another subject, and that the prejudicial matter published is merely incidental to the other matter and that its addition and any prejudice is fortuitous.

216    There are several passages to similar effect in Hinch some of which have already been set out (par 173, above). Merely because the harmful impact is incidental or fortuitous is not determinative, although it is relevant (see also at 26, 28 per Mason CJ, at 43, 46 per Wilson J, at 58 per Deane J, at 66-7, 75-6 per Toohey J, at 85 per Gaudron J). 217 At the conclusion of his judgment Barr J said this about the articles:

133. The mention of the charges, however, is a matter of concern, because one of the effects was to potentiate interference with the administration of justice at the trial insofar as it was likely to provide a link within the memories of persons forming the jury between the subject in the article and the identity of Mr Duong at the trial. It played no part in the discussion of matters which were in the public domain. It was extremely careless and ought not to have happened. However, that does not change my view that the prejudicial effect of the articles was incidental and unintended.
134. The articles were part of a substantial series of articles dealing with subject matter of substantial broad public interest. The trial was likely to raise narrower issues which were only incidental to those canvassed in the articles. In view of these matters and the other matters I have dealt with I think that it is reasonably open to say that the detriment to the trial was outweighed by the public interest in the freedom of communication.

218    In my opinion, this passage disclosed error of law. The dual references to the incidental prejudicial effect of the articles suggests that his Honour considered such characterisation as determinative. Furthermore, they disclose a process of reasoning whereby the starting point was the thrust and purpose of the articles, with the impact upon the trial being examined to see if such impact was itself incidental to the articles. For the reasons set out above, incidentality is not the touchstone of the Bread Manufacturers defence. Indeed reference to incidentality is capable of misleading in a case such as the present. The public and private interests in the fair trial of an accused person require that such interests should commence and remain the focus of the court’s attention. Certain types of incidental adverse impact may attract a successful Bread Manufacturers defence. But this does not occur because the impact is adverse. Nor can it occur, in my view, when the impact involves the disclosure of prior criminal activities in circumstances such as the present.

Conclusions

219 This case raises questions of general principle that attracts the jurisdiction under s101A of the Supreme Court Act. 220 A surprising factual outcome could not itself attract appellate review, although it may be capable of pointing to errors of legal principle. In my view, this is such a case. The way in which the judgment below addressed the incidentality of prejudice indicates a particular approach to the defence which, in my respectful view, betokens legal error. 221 Of greater significance is the silence of the judgment as to the centrality of the right to a fair trial and to the essentiality that such right be protected against the type of interference involved in the present case. Protection of that right is a touchstone of the free and democratic society that the Bread Manufacturers defence is in principle designed to advance. The impugned publication was in a form and at a time that it directly trenched upon the question of Mr Duong’s guilt. The canvassing of that issue in the graphic language of the article did not and could not find justification by reference to a public interest in the general topic, important though it was.

Formal orders

222    For these reasons, it was not reasonably open to the judge to say that the detriment to the trial was outweighed by the public interest in the freedom of communication (par 157, above). That conclusion was vitiated by the errors I have identified. 223    The five questions do not formulate the true issues with the clarity of the three central submissions even though those submissions are directly related to the particular trial. 224    Questions (i) and (ii) are too general to merit an answer of any utility. Question (iii) is both amorphous and confusing in the use of the word “prevent”. Question (iv) is clearly to be answered in the affirmative. Since, however it attracted no submissions because the matter has never been in doubt I would decline an answer. No genuine question of law arises. Question (v) should be answered “no”. 225    I would answer as follows:

(i) Decline to answer.
(ii) Decline to answer.

(iii) Decline to answer.

(iv) Decline to answer.

(v) No.

226    PRIESTLEY JA: I agree with the reasons and conclusions of the Chief Justice. 227    Further, adopting the Chief Justice’s discussion of the meaning of “question of law” in various contexts and in its place in s 101A(1) of the Supreme Court Act 1970, it seems to me to follow that the Attorney General’s questions (ii) and (iii) are not questions of law within the meaning of those words in s 101A(1). 228 I also have doubts about the remaining questions. They seem to me probably to be alien to the purpose of s 101A, which I think must be understood in the light of the High Court’s reasons for its decision in Mellifont v Attorney General for the State of Queensland (1991) 173 CLR 289. 229 However, as the position concerning these questions is not so clear as in regard to questions (ii) and (iii) and as, in view of my agreement with the Chief Justice’s approach, it is not necessary to reach a conclusion on the issue whether they are questions for the purposes of s 101A(1), I do no more than make it clear that I reserve my opinion on that issue. 230 The answers to the question should, in my opinion, be as proposed by the Chief Justice.