Dean v Attorney-General for New South Wales

[1991] HCATrans 41

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll6 of 1990

B e t w e e n -

LEONARD DEAN

Applicant

and

ATTORNEY-GENERAL FOR NEW SOUTH

WALES

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Dean 1 15/2/91

AT SYDNEY ON FRIDAY, 15 FEBRUARY 1991, AT 12.04 PM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:  May it please the Court, I appear with

my learned friend, MR R.W. HOOD, for the applicant.

(instructed by Taylor & Scott)

MR B.M. JAMES, QC:  May it please the Court, I appear for

the respondent with my learned friend,

MR P.I. LAKATOS. (instructed by the Crown

Solicitor for the State of New South Wales)

MASON CJ: Yes, Mr Gross.

MR GROSS:	Your Honours, the proposed appeal in this case involves a number of questions of law of public
importance in our submission.  The main question is
the exposure to contempt proceedings of police
officers, and indeed private citizens, who in the
course of recorded interviews make statements to the media concerning the criminal guilt of an
accused person.

In particular, Your Honours, this matter

raises the question of the extent of such exposure
to contempt proceedings where not merely is there

no intention by the person to affect the course of

justice, but where there is no intent or knowledge

that the particular statement made in the course of

the interview will be reported by the media to the

public. This applies, in our submission, to the

situation where such persons naturally trust the

media to exercise judgment and fulfill its own

responsibilities to obey the law in composing the

stories, quoting the person concerned, and editing

out any material which is not fit to be published

to the general community. Second,

Your Honours - - -

DEANE J:  What do you mean by the general community? I

mean, what if your client had gone down to

Queanbeyan Park and had a little public meeting

where he proclaimed the guilt of a person awaiting

trial?

MR GROSS:  Your Honour, the question, of course, is the

practical tendency of the statement when made to

have a particular effect and that would depend upon

the information having a capacity to reach that

part of the community which represents the pool

from which potential jurors are drawn. So that,

Your Honour, we are drawing a distinction between a

communication made to reporters who have a job and

a responsibility and an expertise to choose what is

fit to print and not, and statements that become

part of the information available to the general

community from which the jurors will ultimately be

drawn for the trial. A further matter - - -

Dean 2 15/2/91

DEANE J: Is there not a likelihood that the members of the

media, while not printing, are likely to say to
their wives or likely to say to their friends, "I

couldn't print this but the police tell me the man

is guilty as can be"?

MR GROSS:  Your Honour, if the zone of republication is that

small, the same risk arises with the police officer

telling his wife or telling someone else in a

relatively confidential situation. We would submit

that where the media receive material this way,

they are receiving raw data from which they make a

selection as to what is newsworthy and what can be

printed and, Your Honours, it is with the media

that the ultimate responsibility lies as to what

shall be in the public domain.

The media assembled, and in this case I think

there was something like 20 or 30 reporters there,

represented as it were a privileged or narrow band
of the community which had particular

responsibilities. That had two consequences, in our submission: since the statements which were

offending were only a small minority of the overall

part of what was said, there was no intention - and

this was the evidence - that any particular

statement of an offending kind should reach the
public, so that there was no intention to publish

the contemptuous material. Second, Your Honours,

we would submit that where in fact the media has

failed in its own responsibility and, indeed, has

breached the law itself in publishing that

material, that represents a consequence which is

not a natural and probable consequence of the

original publication so that there is liability in

law of the initial spokesman who ultimately made

the republication possible.

In the context of defamation law, there is

only a liability for republication where the

republication is a natural and probable result of

the original publication or, perhaps, where it was

intended that that should be the result.	In our
submission, it cannot be a natural and probable

consequence where expert bodies such as reporters

and editors fail, with all the expertise and advice

they have got, to exercise that screening role

which is a daily part of conducting a newspaper or

a television station.

Your Honours, the further question of public

importance - and I appreciate many of these matters

overlap - - -

DEANE J:  Mr Gross, if police officers giving press

conferences about people who are awaiting trial for

serious crime is a commonplace, is it·not essential

Dean 15/2/91

that it stops being a commonplace as quickly as

possible?

MR GROSS:  Your Honour, the hazards of press interviews

where the press are gathered for their own

convenience at one spot on one occasion have been

identified in the Court of Appeal judgment and that

judgment also identifies the fact that protections

have been put in place and guidelines have been set

so that the damage or potential damage which arose

here would arguably be prevented. There are

potential hardships and injustices arising out of

mismanaged interview situations. However, in our

submission, in one way or another the press,

whether at one gathering or a number of separate
interviews, gather material and obtain access to

what the police officer or some other person

involved may have to say. The real problem, in our

submission, is what is thereafter done with it.

Certainly there are public policy grounds for

having controls at the stage of the interview, and
that has already been done, Your Honours, as the

Court of Appeal judgment indicates.

DEANE J:  The proposition is that a police officer can

effectively pronounce the guilt of somebody
awaiting trial to the press on the basis that the

press will realize what a serious contempt of court

it would be if they published it.

MR GROSS:  No, Your Honour, and indeed the applicant has

always maintained the position since that time he

ought not to have made those statements, and we do

not endorse the proposition that there should be

that type of statement made by police officers.

The real question is, in a contempt proceeding,

whether or not an applicant such as Sergeant Dean

could be found guilty of contempt beyond reasonable

doubt for having done so in the context of those

facts.

MASON CJ:  You were saying that it was not a natural and

probable consequence that republication of contempt

matter would follow but I should have thought that

if a police officer convenes a media conference,

proceeds to give a comprehensive account of what

has happened, including the statements to which

objection has been taken, that he must foresee as a

natural and probable consequence that some, if not

all, of the statements will be reported in the

press. You cannot rely on editorial discretion to

get you out of all the difficulties.

MR GROSS:  Your Honour is quite right in those propositions;

however, those propositions do not apply in this

case for this reason: he did not convene the press conference; he is not a nominal defe~dant on behalf

Dean 4 15/2/91

of the police. He was a police officer who was

asked, after someone else had arranged the press

conference, 10 minutes before to be available for

questions. As it turned out, the questions were

directed by the media representatives to he, and he

responded spontaneously but with an expectation

that if anything was said which was not appropriate

for publication, the media liaison officer from the

police department who was there would prevent that

material being published and, in any event, the

reporters and the editors, exercising their own

role, would screen out that which should not be

published.

Now, one appreciates that there is still the

possibility that someone will fail in their duty

but, in our submission, that was not a matter which

he conceded was in his mind at any stage. So -

MASON CJ:	But it is not merely a question of intention, is it? The point is whether what he has done is
calculated to have the prejudicial effect or to
have a tendency so to do.
MR GROSS:	Yes, Your Honour, that, we would accept, but

subject to two matters: firstly, one has to ask

what is the intention, not concerning the
statements at large that were made but the
particular statements which are of the offensive

kind, bearing in mind they are a minority,

spontaneously arising in the course of answering

questions. The second thing is one has to ask the

question, as I think this Court has said a number
of times, concerning the tendency at the time when
the original statement is made and not as we are

looking at subsequent events with the benefit of

hindsight seeing what damage was in fact done.

Now, in our submission, the objective question of tendency has to be judged in the light of what

is known and expected qua those particular

statements, and I think there are three only of

them, at the time when they were made in that

particular context. In our submission, the Court

of Appeal fell into error in, as it were,

attributing responsibility sufficient to find

contempt of court by the fact that he must have

realized there was a possibility that such material

could be published or that he had to expect that

some part of what he said would be published. Of

course, one does not know which part is going to be

published and the evidence, in our submission, was

all one way as to what his beliefs were concerning

his capacity to rely on others to prevent any

offensive statements made by him being published at

large. In our submission, that was sufficient to

Dean 15/2/91

prevent the criminal onus being discharged in

finding him guilty of contempt.

Your Honours, could I just go to the related

matter. I am taking some time, I am sorry.

DEANE J:  Does the evidence disclose whether there were

microphones there as he proclaimed the guilt of the

person awaiting trial?

MR GROSS: There were, I think, 30 reporters there, there

were microphones, there were television cameras,

there were all sorts of technicians about; there

was no doubt that what he was saying was being

recorded for potential use. That material,

however, Your Honour, was not relayed direct to air

but was subject to the reporters composing their

stories, selecting which reality grabs from what he

said would be included in the story, and then

running the whole lot past an editor.

DEANE J:  Did he ascertain that none of it was being

directly broadcast on a radio station?

MR GROSS:  My recollection is it was his belief, and it was

the fact, that nothing went direct to air, and that

is the evidence, in fact.

DEANE J: It may not have, but very frequently in these

conferences the microphones are going direct to

radio stations without any editing.

MR GROSS:  I cannot quite remember how many media

organizations were eventually charged with

contempt. I do not know about the radio stations.

DEANE J:  I was asking did he check that none of the

microphones were going straight on to 2GB in

Sydney?

MR GROSS:  My recollection of the evidence is there was no

suggestion that he believed that they were so going

all of the material which was ultimately played was	and, indeed, I am sure my friend will concede this,
played on a delayed basis or presented on a delayed
basis subject to the usual editorial process.

DEANE J:  I was wondering if that was good luck rather than

good management.

MR GROSS:  Your Honour, I do not wish to guess, but my

recollection is that that was his, and everyone

else's expectation, as to what would occur. It

would not be standard practice, whether in the

media or in police affairs, that you have that

direct broadcast to the public at the time when the

matter is being recorded. It was all delayed

Dean 6 15/2/91

transmission but subject to those controls I have

indicated.

Your Honours, there is, in our submission, a

question arising concerning the mental element of

contempt in the present case. The defendant

obviously was not a media organization and he, as

it were, was the subject-matter of the

republication to the public by virtue of the media

acting contrary to his own expectations and their

own responsibilities. In our submission, the

strict liability concepts which are so frequently

dealt with in the law of contempt are, of course,

quite important in the context of a media

organization where there is an assumed pool of

knowledge and expertise which places high

responsibilities on those particular persons.

I appreciate much has been said concerning

what intent has to be established but, in our

submission, that requires review, firstly, in a

situation where the person concerned is not as it

were experienced with the media and, secondly,

where the manner in which the material is

ultimately published involves conduct qua those

statements which is not a natural and probable

result. But, Your Honours, we would be coming back

to the central submission that it was not proven

beyond reasonable doubt that he intended to publish
to the public at large these particular statements
and on all the authorities, in our submission, it

is necessary for the intention to publish to be

established to the requisite level.

GAUDRON J: But it is not a question of intention to

publish, it is intention to publish at large, in

your submission.

MR GROSS:  Your Honour, that is so, to publish to that level

of the community, that is beyond the reporters,

where contempt laws become relevant.

GAUDRON J:  He obviously intended to publish something

beyond the reporters, otherwise he would not have

been there, and you really must limit your

submission to faith in the editorial processes.

MR GROSS:  Yes. In our submission, for the Crown to show an

absence of such faith or absence of such reliance.

In our submission, even if there was negligence,

even if he should have been more careful -

GAUDRON J: But that is not a question of intention at all;

it is asserting really a defence, a special defence

of faith in the editorial processes of media

organizations.

Dean 7 15/2/91

MR GROSS:  Your Honour, that may have been the basis of it

but, in our submission, it goes to the heart of the

zone of publication which was intended and publish,

in our submission, means to the public and not just

to a battery of microphones and reporters.

GAUDRON J:  But the battery of microphones and reporters was

there only for one purpose and that was that what

was said, subject to your editorial, could be

disseminated much wider and much further than that

particular gathering.

MR GROSS: 

I appreciate what Your Honour is saying but, in

our submission, all it does is make possible a
later republication. It provides the raw data in

which what is said is relived and repeated in the

same way. But, Your Honours, the law places high

responsibilities on media organizations. It

punishes with contempt proceedings those

organizations when they infringe expectations. In
our submission, if the approach of the Court of

Appeal is right, every citizen responsible for some

initial statement which is quoted or even recorded and repeated is at risk if the media organizations

fail in their responsibilities. It is a question,

in our submission, of where ultimate responsibility

lies and how that bears upon the situation of the
person who made the original statement.

Your Honours, this question came up in DPP v

Wran and that was a separate situation where the

Court of Appeal found that there was the intention

by Mr Wran, as an experienced politician used to

the media, not only to publish the statement to the

public at large but for it to have a certain effect

on the course of justice. Apart from that case and

some dicta in Mundey's case it is a question that

really has not been explored in the context of

contempt cases as distinct from its obvious related

operation in the area of defamation. But in our submission, given the criminal onus that applies and the need for citizens to know where they stand

in such matters, the question of contempt does

justify separate consideration by this Court.

Your Honours, I have completed my submission,

unless there was some further matter.

MASON CJ:  Thank you, Mr Gross.

The Court need not trouble you, Mr James. The

Court is of opinion that the actual decision of the Court of Appeal in this matter was clearly correct.

The application for special leave is therefore

refused.

AT 12.24 PM THE MATTER WAS ADJOURNED SINE DIE ·

Dean 8 15/2/91