Director of Public Prosecutions v Francis

[2006] SASC 211

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

DIRECTOR OF PUBLIC PROSECUTIONS v FRANCIS & ANOR

[2006] SASC 211

Judgment of The Honourable Justice Bleby

18 July 2006

PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - CONTEMPT - WHAT CONSTITUTES - INTERFERENCE WITH COURSE OF JUSTICE AND ADMINISTRATION OF LAW - PREJUDICING FAIR TRIAL OF ACCUSED - NEWSPAPER, RADIO OR TELEVISION REPORT

First defendant a radio presenter and second defendant a radio broadcaster charged with two counts of contempt of court – Guilty plea by each defendant to count one of bringing a judicial officer into contempt or lowering his authority – Whether each defendant guilty of count two being words spoken or calculated to prejudice or pervert the course of justice – Talk back radio program – Discussion of application for bail before Magistrate by an accused person charged with minor indictable offence – Where accused person could elect for trial by jury – Consideration of principles of contempt by publication concerning impending litigation – Whether comments of first defendant had a real and definite tendency to prejudice fair trial of accused person – Comments constituting vilification, contempt and hostility towards accused person and encouragement of others to take similar view – Defendants guilty of contempt on count two.

Magistrates Court Act 1991 (SA) s 45, s 46; Magistrates Court Rules 1992 (SA) r 21; Director of Public Prosecutions Act 1991 (SA) s 7(1)(da); Supreme Court Rules 1987 (SA) r 93; Criminal Law Consolidation Act 1935 (SA) s 63A; Summary Procedure Act 1921 (SA) s 5, s 103(2), s 103(3), s 105(4), referred to.
Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; State of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, applied.
Attorney-General for New South Wales v John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695; Attorney-General v British Broadcasting Corporation [1981] AC 303; Attorney-General v Nationwide News Pty Ltd (1986) 43 SASR 374; Ex parte Bellanto: Re Prior [1963] NSWR 1556; Ex parte Bread Manufacturers Ltd: Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242; Ex parte Sanderson [1928] SASR 448; Minister for Community Welfare v Keating (1980) 25 SASR 313; Re Colina: Ex parte Torney (1999) 200 CLR 386; The King v Dunbabin: Ex parte Williams (1935) 53 CLR 434; Vine Products Ltd v Green [1966] 1 Ch 484, considered.

DIRECTOR OF PUBLIC PROSECUTIONS v FRANCIS & ANOR
[2006] SASC 211

Civil

BLEBY J:

Introduction

1. I have before me an inter partes summons issued by the Director of Public Prosecutions (“DPP”) alleging two counts of contempt of court against each of two defendants.  The first defendant, Robert Neville Francis (“Francis”) is a radio presenter for Radio Station 5AA operated by the second defendant, Festival City Broadcasters Pty Ltd (“FCB”).

2. As amended the two counts are as follows:

   Count 1: Bringing a Judicial Officer into Contempt or Lowering his Authority.

   Count 2:    Words Spoken Calculated to Prejudice or Pervert the Course of Justice.

3. Particulars of the two counts are set forth in a letter dated 7 March 2006 from the DPP to the solicitors for the defendants.  They are as follows:

   In relation to count one the Director alleges that the first and second defendants have committed a contempt of court in that the comments broadcast on 26 October 2005 and set out in paragraph 8 of the affidavit of Pauline Mary Barnett sworn 6 February 2006, which when taken together were calculated to shake public confidence in the administration of justice by carrying out a baseless attack on the integrity or impartiality of the court or judicial officer.  In particular the comments:

   1.Criticised the Magistrate for entertaining a bail application when it was his statutory duty to do so.

   2.Stated that the Magistrate should be subjected to physical violence.

   3.Stated that the Magistrate should have a psychiatric assessment.

   4.Indicated that the Magistrate was unworthy of respect.

   In relation to count two the Director alleges that the first and second defendants have committed a contempt of court in that the comments broadcast on 26 October 2005 and set out in paragraph 9 of the affidavit of Pauline Mary Barnett sworn 6 February 2006 taken in combination had a real and definite tendency to interfere with the administration of justice, that is, to prejudice a fair trial.  In particular the comments included:

   1.     Media prejudgement of the issues to be litigated.

   2.     Canvassing in detail the evidence so as to engage in trial by media.

   3.     Creating an atmosphere of hostility towards an accused.

   4.Commenting in terms such that time would not lessen the impact of the sensational discussion of the facts.

4. The judicial officer the subject of count one was a magistrate sitting in the Adelaide Magistrates Court in relation to an application for bail by an accused person charged with possession of child pornography.  The course of justice alleged to have been prejudiced or perverted, the subject of count two, was the trial of the same accused on the charge in question.

5. I will return to the facts in more detail in due course.  It is necessary first to deal with some preliminary matters.

   The court’s jurisdiction

6. Although the Magistrates Court has jurisdiction to deal with contempt in the face of the court[1], it appears not to have jurisdiction to deal with other forms of alleged contempt such as those the subject of this action.  The Supreme Court has inherent jurisdiction to deal summarily with any contempt of an inferior court.[2]

   [1] Sections 45 and 46, Magistrates Court Act 1991 (SA).

   [2] Ex parte Sanderson [1928] SASR 448; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; Ex parte Bellanto: Re Prior [1963] NSWR 1556 at 1567-1568; Minister for Community Welfare v Keating (1980) 25 SASR 313.

7. There is also no doubt that such proceedings may be instituted on the application of the DPP. By virtue of s 7(1)(da) of the Director of Public Prosecutions Act 1991 (SA) the DPP has power “to institute civil proceedings for contempt of court”. The appropriate procedure is by summary proceedings and not by indictment.[3]

   [3] John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370; Re Colina; Ex parte Torney (1999) 200 CLR 386 at 393.

8. Where a person is alleged to have committed some forms of contempt of the Supreme Court there is a procedure prescribed by r 93 of the Supreme Court Rules by which such proceedings are governed.  That rule does not apply in its terms to allegations of contempt of this nature.  Nevertheless, as a matter of convenience, and without opposition from any party, I directed that the procedure to be followed in these proceedings be that prescribed by r 93.06.

   Pleas entered and matters for decision

9. At the hearing on 24 March 2006 both defendants through their counsel pleaded guilty to count one.  Both defendants pleaded not guilty to count two.

10. At this stage I have not heard any submission as to penalty on count one.  I have evidence by way of affidavits relating to the admitted breaches of count one by both defendants and as to the alleged breaches of count two.  The facts are not in dispute.  The matter for decision at this stage is whether each of the defendants is guilty of count two.

    The facts

11. The man who was charged in the Magistrates Court with possession of child pornography is a man to whom I will refer as “the accused”.  Where his name is mentioned in the transcription of the broadcast I will use the initials, RJW.  However, it is to be understood that where I use those initials or any combination of them in relating what the defendant Francis said about the accused, he used the actual name represented by the particular initial.

12. The accused was charged on information with a minor indictable offence.[4]  For such an offence an accused may elect to be tried in a superior court.[5]  In other words the accused may elect for trial by jury.  There are time limits within which an election must be made[6], but that election may be withdrawn at any time before conclusion of the preliminary examination.[7]  If no election is made, the matter proceeds in the same way as a charge for a summary offence before a Magistrate.[8]

    [4] Section 63A(1)(a), Criminal Law Consolidation Act 1935 (SA). For the definition of minor indictable offence see s 5, Summary Procedure Act 1921 (SA).

    [5] Section 103(2), Summary Procedure Act 1921 (SA) and Rule 21, Magistrates Court Rules 1992 (SA).

    [6] Rule 21, Magistrates Court Rules 1992 (SA).

    [7] Section 105(4), Summary Procedure Act 1921 (SA).

    [8] Section 103(3), Summary Procedure Act 1921 (SA).

13. 26 October 2005 was the day on which the accused’s application for bail was due to be heard before a magistrate in the Adelaide Magistrates Court.  It was anticipated that a psychiatric report of Dr Raeside relevant to the application for bail would be available, but it was not.  As a consequence, the accused was remanded in custody and the hearing of the bail application was adjourned until the report could be made available to the Court.  At that time it was still open to the accused to elect for trial by jury.  There is nothing to indicate that the defendants were aware of any decision by the accused not to elect.  No plea had been entered.

14. On the evening of 26 October 2005 Francis was the host of a talkback radio program on Radio Station 5AA between 8.07 pm and 11.37 pm.  It was during that period that Francis, either in encouraging listeners to telephone him or in the course of conversation with listeners who had telephoned, made the comments which were broadcast over the radio station and which are the subject of the two counts of contempt.

15. Although I am only concerned at this stage with the facts related to count two, it is convenient to set out the words relied on in respect of both counts and the context in which they were spoken, as these all give flavour to and provide a more complete understanding of the words relied on in count two. In the quotations which follow the words in italics are relied on by the DPP as constituting together the breach of count one.  The words underlined are those on which the DPP relies in order to constitute the breach of count two.  Omissions in brackets within the text have been made to preserve the anonymity of the accused.

16. When Francis began his program he was suggesting topics on which listeners might call in order to participate in the on‑air discussion.  The subject of the Magistrates Court proceedings was introduced in the following manner:

    What about, I mean, this has got to be the hottest thing at the moment.  The judge says or a judge says the accusations against a […] year-old [named suburb] man are amongst the most bizarre he’s ever heard.  Now listen to this very closely.  RJW was charged earlier this month with having some two thousand child porn images, that’s irrelevant.  A police document has been released in court today giving details of a comprehensive address book of girls aged under ten, this is in Adelaide, this is in Adelaide folks and diaries written by W saying that he wanted to eat the internal organs of these young girls.  Now here’s the big one.  Bail has been refused until at least next Monday, the Judge saying to let him into the community without a psychiatric examination would be irresponsible.  I mean, am I stupid; do I live in this bloody world?  Am I here as a normal bloody human being or do judges live in another world?

    How dare the judge make a comment to say he’s refused bail until next Monday because they can’t let him into the community without a psychiatric examination?  This is a guy who has your children, your ten-year-old little girls on his books that his wife found under a cupboard in his house.  Don’t tell me Attorney-General that this man is innocent until proven guilty.  These were bloody  lists that he said he wrote, under the bloody cupboard that his wife found and the judge may give him bail next week.  How dare he.  I go crazy over things like this.  Hello, anybody living out there.  Do you want to talk about it?  Are you interested at all?  Do you know that ten-year-old kids are on a list of a man out there who’s at the moment in jail but may get out next week?  Come on.  8223 0000.  Am I going mad to myself, am I going stupid about something ridiculous?  Get on the bloody air and talk about it for goodness sake.  This is where your family, your people in this State under our laws may be having people walk the streets and [they] and maybe those people who are going out there and having a list of little children that this man wants to bloody eat and a judge is thinking of maybe giving him bail.  I find it just so bloody hard to understand.

17. I have quoted the whole of those paragraphs in order to place the words complained of, particularly those relating to count two, in the relevant context.  At that stage of the program Francis was encouraging callers to telephone the radio station to express their views about what he said the Magistrate had done.  At other times during the course of the evening he repeated the assertions as to what had happened in the Magistrates Court in similar language, either for the purpose of encouraging members of the public to express their views, or in the course of conversations with listeners.  On several occasions, and this was reflected in the tone of his voice as well as what was said, he expressed his own personal anger both at what W was alleged to have done and at what the Magistrate had said on adjourning the bail application.  It is also clear from later parts of the program that Francis was sympathetic and encouraging to those who shared his views about what the Magistrate had done and was unsympathetic to and dismissive of at least one who expressed a view that there might be more to the story than had been reported.

18. In short, Francis (and many of his callers) made very clear their personal and intolerant views of a man charged with possession of pornographic material who allegedly kept a list and diary of the nature of that described.  Francis (and some of his callers) also made clear, particularly, their intolerant views of what the Magistrate had reportedly said on adjourning the bail application and as to the granting of bail to such a person at all.

19. In the course of conversation with one of the earlier callers Francis said of the accused:

    … You know this guy has got to die, he’s got to die, and he’s got to die and be seen … to be bloody dead.

20. In conversation with the same caller he later said:

    This is probably one of the most dreadful things that have ever happened … and the thought of what’s ever happened.  This is worse than The Family deaths; this is worse than the Snowtown bloody deaths; this is worse than the Truro deaths; this is bloody terrible.

21. Less than half an hour into the program Francis said:

    But those of you who’ve just tuned in, I’ve been talking about the judge saying that the accusations against a […] year old [named suburb] – this is in Adelaide, in Adelaide here – amongst the most bizarre he’s ever heard.  RJW, remember that name, that name may go down in history, was charged earlier this month with having some 2,000 child porn images. A police document has been released in court today giving details of a comprehensive address book of girls aged under ten, which his wife, I believe, found under a cupboard in his house, and diaries written by W saying he wanted to eat the internal organs of young girls.  He had the names and addresses and telephone numbers of some of these children from primary schools all around town. The worst thing about this whole situation is bail has been refused until at least Monday.  They’re even thinking about bail, the judge.  The judge saying “To let him into the community without a psychiatric examination would be irresponsible”.  Irresponsible! Oh, smash the judge face in!

22. The conversation with a subsequent caller was, in part, as follows:

    FRANCIS:  And then to think, oh well, we may leave him out on bail because it’d be irresponsible if we let him out if he was psycho.  Psycho – the bastard’s a dick brain.

    CALLER:    Oh, look, he shouldn’t even be allowed to breath the air.

    FRANCIS:  Hear, hear.

    CALLER:    I’m sorry.

    FRANCIS:  And we’ve decided, and I’m sure the whole bloody State has, and I have …

    CALLER:    Yeah.

    FRANCIS:  … you know.

    CALLER:    Yeah.

    FRANCIS:  He’s guilty, guilty, that’s it, guilty.

23. To another caller he said:

    I’ve just pushed everybody to ring tonight, because I think … it’s something that people have to … ring the Attorney-General.  This guy can’t be allowed to walk the streets until he’s found bloody guilty in the … or not guilty in a court.

    …

    CALLER:    … As I said, I can’t speculate but the judge allowing him bail, the word for that is criminal.

    FRANCIS:  No, well …

    CALLER:    Not stupid, criminal.

    FRANCIS:  Yeah, that’s what gets me, you know.  It’s the judge who should have a psychiatric examination, in my opinion.

24. At another point where Francis was encouraging callers to telephone he said:

    This is – I am such a; I’m so uptight about this situation with the […] year old [named suburb] man who’s being assessed by, well, assessed for bail – assessed - he’s being assessed for bail do you mind, by a psychiatrist, despite a judge saying that the claims against him are amongst the most bizarre he’s ever heard.  RW’s diaries – handed in to police by his wife – reveals that he wanted to eat the internal organs of young girls.  Among them were booklets entitled “Food Supply” and “Bondage”, and details of names, addresses and phone numbers of young girls aged under 10.  Its unbelievable. Police told the court W told them the documents were stopping him from acting out his fantasies – amongst them, discs containing 2,000 images of child porn.  And he’s on – they’re even thinking about – his lawyers are thinking about applying for bail.  I find that so – oh, so disgusting.

25. To a caller who raised a question about the reason for behaviour like that attributed to the accused, Francis said:

    FRANCIS:  Of course, there’s deep issues with these people.  How dare they even think like that.  They’re, you know, they’re obviously loony bins.  What annoys me is the judge has thought about him getting bail. … You know, it’s even in his mind to give him bail.  The judge is as loony as the bloody guy himself.

    CALLER:    Yeah, well I don’t think jail is a situation for these type of people.  I think they should be locked up in a psychiatric ward, and the key thrown away in that situation.

    FRANCIS:  Let him go to court first, and if he’s found to be bloody ill, psychiatric ward, let him bloody burn at the bloody, at the stake, as far as I’m concerned.  Anybody who even thinks like this has to be got rid of off the face of this earth.

26. In relation to a caller who raised a question as to the influence the “do-gooder” movement had on the “lax sentencing” of the accused Francis said:

    Well, there’s no sentencing yet because the man hasn’t even really gone to court … and been, you know, put up to trial.

27. A little later to the same caller he said:

    Because, I guess, that’s the country we live in and we give these people the right to be able to say you’re innocent until proven guilty.  He hasn’t done any of these things; he had it just on his mind.  And I think, “Geez, if you’ve got it on your mind mate, and … if I was the judge … if I was Saddam Hussein, I’d blow your head off in one second”.

28. To the next caller who complained that “the judge is just as bad as what he is as far as I’m concerned”, Francis said:

    And that’s what I’m mainly concerned about.  I mean it hasn’t gone to court yet, but the fact is, my main concern, that the judge is sitting in court has said, “I refuse bail until at least Monday … because, you know, I wouldn’t want to send you into the community without a psychiatric examination”.  Bloody hell! … Maybe the judge should go into a psychiatric bloody examination to even think about giving him bail.

1. In the course of conversation the next caller asked whether the accused would go to gaol for the amount of pornographic material he was said to have had, to which Francis replied:

   I don’t know. And he hasn’t gone to court yet, … and here we are, … here we are we’ve been giving him sort of a kangaroo court on air I suppose … And somebody who even thinks about something like this.  But in my opinion this guy is almost guilty, but the fact is I don’t want to – I didn’t want to stress on that.  My stress was the fact that the judge, … the dirty, lousy, bloody judge, … even thought about having bail for a person like this.

2. With another caller the conversation developed around judicial independence.  The caller commented that judges were “above everybody else and above criticism and above all we lower class of people”.  The caller went on to complain that judges “live in a world of their own and have nobody to answer to” but went on to comment about ultimate equality, to which Francis said:

   I know what, I know what you’re saying, and you can say it straight – their shit still stinks like everybody, and that’s … Yeah, yeah, stinks like everybody else’s, that’s right.  But they think it doesn’t.  You see that’s the point, they think it doesn’t, that’s right.

3. Much later in the program, when Francis was again calling for callers to telephone, he again described what had allegedly happened in the Magistrates Court that day and said:

   Now, that’s what made me go crazy.  How dare the judge, whether be male or female, even contemplate having a bail – I mean the guy, now, is obviously in the jugaroony (sic) and I hope he stays there and dies in the jugaroony as far as I’m concerned.  He hasn’t been convicted, he hasn’t gone to jail yet, but they’ve obviously kept him in.  But they’re thinking about giving this guy bail.  I can’t believe that any human being, let alone a judge, would allow the thought of maybe bail being given to somebody like this.

   Now I’m here for an hour folks, 8223 0000.

   We have not talked about any other subject tonight except for this situation of this […] year old guy – […] year old guy who wants to eat the internal organs of young girls and he has their addresses and telephone numbers from primary schools in Adelaide in a book that was put to the court this morning. The dirty, rotten little runt!

4. Finally, he said in the course of conversation with a late caller:

   FRANCIS:  … If I was a parent of a 10 year old child, I’d be going nuts tonight thinking about what the hell is this, chance of this man even getting out of jail next week, because he hasn’t been convicted of anything yet.

   CALLER:    And he hasn’t even had a psychiatric report.  That’s, that’s another …

   FRANCIS:  Well he’s going to.  He’s going to have a psychiatric report.

   CALLER:    Yes.

   FRANCIS:  How long has he been thinking that way?  Has he, has he done anything in the past?

   CALLER:    I’ve never heard anything.

   FRANCIS:  We haven’t heard anything about lost 10 year old girls, no.

5. Besides having a written transcript of the relevant parts of the broadcast, I have listened to a recording of those parts.  One clear impression of the broadcast, over a number of hours during the evening, was the expression of shock and anger at the Magistrate even contemplating releasing the accused on bail.  That is a matter to be dealt with in due course on the plea to count one.

6. The other clear impression of the broadcast was the feeling of contempt, odium, scorn and hostility generated by Francis towards the accused.  One of the factors inducing that impression was the assertion that, whatever might happen at a future trial, the accused was guilty of a most serious offence.

7. However, I am not satisfied that those assertions of guilt related to the offence with which the accused was charged.  They appear to relate to some other and more serious offence.  At the outset, Francis remarked that the fact that the accused was alleged to have been in possession of child pornography was irrelevant.  Other comments referred to above suggest that the accused’s guilt was in some way associated with the keeping of the addresses of young girls and his alleged desire to eat their internal organs.  The strongest implication from the broadcast was that the accused not only maintained the list of young girls for predatory purposes but that he had probably preyed on or was likely to prey on such young girls with that intent.  Rather than suggesting pre-judgment of the  offence with which the accused was charged, it seems that Francis was suggesting a much more sinister but unspecified crime of which the accused was guilty. 

8. Nevertheless, it was that assertion of guilt which went a long way to create the impression of contempt, odium, scorn and hostility towards the accused to which I have referred.  There were also other aspects of the broadcast which helped generate that impression.  There was the overt encouragement of listeners to adopt a similar view of the accused – encouragement which had that very effect on many callers to the station.  There was the degraded nature, conveyed by the words used and the tone of voice, of the accused’s alleged behaviour.  There was the inducement of listeners to remember and the frequent repetition of the accused’s name and the assertion that so serious were the allegations that the accused ought to die.

9. The accused was charged with one count of possession of child pornography.  In the broadcast it was asserted that he was allegedly in possession of 2,000 child pornography images.  If that was so, the fact of possession of the address book and diaries and their content might well be irrelevant and inadmissible on the trial.  It is difficult to see how they could be relevant to the question of possession of the child pornography.  However, Francis’ description of the content and circumstances of revelation of those documents and the implication he sought to draw from them would be as damaging to the accused on the trial of such a charge as it was graphic to the listeners who heard it.

   The relevant principles

10. Contempt involving publication in the media of matters concerning impending litigation, be it civil or criminal[9], gives rise to the need to resolve the tension between two fundamental concepts on which a democratic society is founded: the protection of the integrity of the administration of justice without outside interference and the protection of freedom of expression, especially on matters of public concern and interest.  What has been described as having a “profound influence”[10] on the law of contempt in Australia in this regard is a passage from the judgment of Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd:[11]

    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 …

    [9] There is no basis for distinguishing between the two: Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15.

    [10] Ibid at 18, Mason CJ.

    [11] (1937) 37 SR (NSW) 242 at 249-250.

11. It is in the working out of that concept that several decisions of the High Court are of some relevance.  In John Fairfax & Sons Pty Ltd v McRae[12] three charges had been preferred against an accused person.  One was punishable summarily in a court of petty sessions and the other two were punishable summarily but could have been the subject of indictments.  The accused could have been committed for trial on the third charge.  After the charges had been laid a newspaper published a statutory declaration of the accused alleging repeated and brutal assaults by police officers on him at and after his arrest.  Other material published suggested that the accused had been falsely charged.  It was held that having regard to all the circumstances attending the publication, including the announcement the previous day by the government of a Royal Commission to conduct an inquiry into similar allegations made by another person, the publication did not have a real and definite tendency to prejudice or embarrass the proceedings.

    [12] (1955) 93 CLR 351.

12. In their joint judgment, Dixon CJ, Fullaghar, Kitto and Taylor JJ said:[13]

    We are in complete agreement with Owen J, when he says, in effect, that it would be a disgraceful thing if “trial by newspaper” were allowed to supersede, or to influence, the ordinary process of the courts. … On the other hand, because of its exceptional nature, this summary jurisdiction has always been regarded as one which is to be exercised with great caution, and, in this particular class of case, to be exercised only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case.  A penalty will not be imposed in its exercise “unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference” - per Cotton LJ in Hunt v Clarke, quote by Lord Russell CJ in Reg v Payne. [Footnotes omitted]

    [13] Ibid at 370.

13. In other words the tendency to interfere must be a practical reality and not merely a theoretical tendency.  An allegation of police brutality did not have any bearing on the guilt or innocence of the accused, absent any suggestion of a challenged confessional statement of the accused.

14. In State of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation[14] (“BLF case”) there had been an appointment of a Royal Commission into the conduct of the respondent registered organisation of employees, the terms of reference of which included an inquiry as to whether officials had engaged in conduct contrary to law.  The Commonwealth, Victoria and Western Australia had commenced proceedings for cancellation of the registration of the organisation under the Conciliation and Arbitration Act 1904.  It was alleged that the conduct of the Royal Commission would constitute a contempt of court by interfering with the course of justice in relation to the deregistration proceedings.  It was held by Gibbs CJ, Mason, Aickin and Wilson JJ, Stephen and Brennan JJ dissenting,  that it had not been shown that the conduct of the Royal Commission tended to interfere with the course of justice.

    [14] (1982) 152 CLR 25.

15. The test applied by Gibbs CJ as a result of the balancing of the respective interests required 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”.[15]  Mason J concluded that no restraint in that case should be imposed “unless it is established that it is necessary to avoid a substantial risk of serious injustice.  It is not enough in my view to show that there is some apprehension of injustice arising from some tendency to prejudice”.[16]  Wilson J[17] said that the jurisdiction is to be exercised “with great caution and only if it is quite clear that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case”.  Brennan J[18] applied a similar test.

    [15] Ibid at 60.

    [16] Ibid at 98.

    [17] Ibid at 133.

    [18] Ibid at 177.

16. In Hinch v Attorney-General for the State of Victoria[19] the contempt involved three talkback radio broadcasts concerning an ordained Catholic priest who was charged on information with numerous counts of indecent assault, buggery and assault with intent to commit buggery.  He was and remained the governing director of an organisation which conducted children’s camps and other activities for children.  He had previously been convicted and jailed on one count of indecent assault on a 16 year old girl. In the course of the discussion other criminal suspicions were aroused relating to earlier charges against the priest which had not been proved and to acquittals of other offences.  On each occasion the talkback host questioned how the priest had been allowed to continue to run the foundation with a sexual criminal record involving juveniles.  After the second broadcast the priest was charged with two further counts of indecent assault and one count of rape.  They became the subject of similar comment and questioning.

    [19] (1987) 164 CLR 15.

17. Mason CJ referred to the tests adopted by Gibbs CJ and himself in the BLF case and concluded:[20]

    Where the public interest in the administration of justice does not yield to a superior public interest, the balancing approach should protect the administration of justice from any substantial risk of serious interference.  The application of a test in this form would best reconcile the conflicting demands for a free press and for a fair trial … In this formulation the adjective “serious” is essentially emphatic, so that I would be prepared to accept the test of “real risk” of interference stated by Gibbs CJ.  To my way of thinking such a test balances more appropriately the competing considerations than a principle which speaks of a publication having a tendency to prejudice a fair trial or a publication which is calculated to prejudice a fair trial … [References and footnotes omitted]

    [20] Ibid at 27.

18. Wilson J spoke again of the requirement that the material “must exhibit a real and definite tendency to prejudice or embarrass pending proceedings”.[21]

    [21] Ibid at 34.

19. Deane J was content to adopt the test favoured by Mason, Aickin and Wilson JJ in the BLF case[22], and Toohey J likewise had asked whether the statements “as a matter of practical reality, have a real and definite tendency to interfere with the due course of justice in relation to the trial” of the accused.[23]

    [22] Ibid at 46-48.

    [23] Ibid at 70.

20. Where the publication reflects directly on the guilt or innocence of an accused person or where there is, in effect, a trial by media, courts have less difficulty in interfering to protect the integrity of the administration of justice.  When discussing the relevant tests in the BLF  case Mason J noted:[24]

    The argument that there is a risk of contempt has in my view drawn too heavily on the principles that have been applied in cases in which newspapers have published material in advance of a criminal trial.  These principles have been fashioned to meet the dangers of trial by newspaper when the very occasion for the report in the newspaper is the pending or expected criminal trial and the report, generally of a sensational and dramatic kind, is directed to the very issue which will arise at the trial – the guilt or innocence of the accused.  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.  Consequently the test to be applied is whether the publication has a tendency to interfere with the administration of justice.

    [24] (1982) 152 CLR 25 at 98-99.

21. As I have already pointed out, although Mr Francis in this case made assertions that the accused was guilty, I cannot be satisfied that he was asserting that the accused was guilty of the crime of possessing child pornography.  The impending proceedings against the accused were not prejudiced by any media discussion or assertion of guilt of that charge.  If there was a real risk of interference in the administration of justice in relation to the proceedings against the accused, it is to be found in other and less direct influences on the outcome of the accused’s trial.

22. While it is clear that the act of publication must be intentional[25], an intentional purpose of prejudicing the due administration of justice is not an essential element.[26]  It is, nevertheless, a relevant consideration.[27]

    [25] Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15 at 46, Deane J; Attorney-General v Nationwide News Pty Ltd (1986) 43 SASR 374 at 408, Olsson J.

    [26] John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371.

    [27] State of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 56, Gibbs CJ.

23. Delay between the publication and the trial is a significant factor in deciding the level of risk of prejudice to a fair trial.  As Mason CJ observed in Hinch v Attorney-General for the State of Victoria[28], “(t)he relevance of delay is that it naturally intends to erode the recollection of the listener, the viewer and the reader”.  In Attorney-General for New South Wales v John Fairfax & Sons Ltd & Bacon[29] McHugh JA discussed the effect of delay and a number of cases in which this has been relevant.  Without undertaking an analysis of all those cases, it is clear that, while delay can be significant, it may be offset by the nature and intensity of the publication, as instanced by the observations of Deane J in Hinch v Attorney-General for the State of Victoria:[30]

    It seems to me to be plain that, in the circumstances of the present case the likely lapse of time before any ultimate trial would not avoid the very real possibility that the publications would adversely interfere with the due administration of justice. The prejudgment of guilt, in the context of the extreme disaffection which the learned trial judge rightly found the public statements were likely to arouse, was an affront to the administration of justice in relation to the pending committal proceedings as well as to any subsequent trial.  Potential witnesses, as well as prospective jurors, were obviously likely to be affected by the public denouncement of Glennon as a priest who had “a sexual criminal record involving juveniles” and by the public insinuation of guilt, not only of the offences of “child molestation” of which he stood charged, but of other still hidden sexual offences “over the years” involving “how many other children … too scared to come forward”.  It could not be suggested that the possibility of prejudice of that kind to the administration of justice in relation to the pending committal proceedings would be avoided by any anticipated lapse of time.  Moreover, the learned trial judge obviously was of the view that the strong prejudice against Glennon which the broadcasts would arouse in a responsive listener would, in the context of the unusual circumstances of the case and the vehemence of the publications, persist until any ultimate trial at least in the subconscious.  As his Honour commented, the “effect of the message would be very likely to remain ready to be re-livened or re-awakened when evidence at his trial is led.  Only one juror would need to recall some part of the detail of his prior offences, or alleged offences, for his fair trial to be likely to be prejudiced … [I]t is also likely that witnesses wavering in their resolution as to any value judgment that they might have to make concerning the facts, or entertaining any doubts as to his or her testimony, would be stiffened and fortified adversely to Glennon by the knowledge of the facts of his prior criminal history as stated by Mr Hinch.  They would be far more likely to jump to conclusions”.  I can see no reason to doubt that his Honour’s views in that regard were correct.

    [28] (1987) 164 CLR 15 at 32.

    [29] (1985) 6 NSWLR 695 at 710-711.

    [30] (1987) 164 CLR 15 at 55-56.

1. Of critical relevance will be whether the trial in question is by judge or magistrate alone or by jury.  If the trial is by judge or magistrate alone it is much less likely that there is a real risk of prejudice from certain types of publication.  In State of Victoria v Australian Building Construction Employees’ and Builders’ Labourers Federation[31] Gibbs CJ observed:

   [31] (1982) 152 CLR 25 at 57-58.

   There are statements in the authorities that utterances which would prejudice mankind against a litigant will amount to a contempt.  Of course, where the pending trial is by jury, the effect of the prejudice on the legal proceedings will be apparent.  Where the trial is by judge alone it is not easy to see why the effect of the publication on the public at large should be material.  If the publication is defamatory, the law provides a remedy; if it is not, the fact that the public may form an adverse opinion of one of the parties to litigation does not in my opinion mean that there has been an interference with the due administration of justice, when the public as such plays no part in that administration.

   Gibbs CJ went on to cite with approval the following passage from the judgment of Buckley J in Vine Products Ltd v Green:[32]

   This is not an action which will be tried by a jury and, although I suppose there might be a case in which the publication was of such a kind that it might even be thought that it would influence the mind of a professional judge, it has generally been accepted that professional judges are sufficiently well equipped by their professional training to be on their guard against allowing any such matter as this to influence them in deciding the case, and it is not suggested in the present case that anything has been done to prejudice the trial of this action in that sort of way.

   He also cited a passage from the judgment of Lord Salmon in Attorney-General v British Broadcasting Corporation:[33]

   I am and have always been satisfied that no judge would be influenced in his judgment by what may be said by the media.  If he were, he would not be fit to be a judge.

   Gibbs CJ continued:

   I respectfully agree with Lord Salmon.  It is the everyday task of a judge to put out of his mind evidence of the most prejudicial kind that he has heard and rejected as inadmissible.  It is not uncommon for a judge to try a case which was the subject of emotional public discussion before the proceedings commenced.  I find it quite impossible to believe that any judge of the Federal Court who may ultimately deal with the proceedings in that court will be influenced in his decision by anything he may have read or heard of the evidence given or statements made at the inquiry.

   [32] [1966] 1 Ch 484 at 496.

   [33] [1981] AC 303 at 342-343.

2. Despite some misgivings and qualifications expressed in some other cases, Mason J took a similar view.[34]

   [34] Ibid at 101-102.

3. Finally, of particular relevance to magistrates, in Attorney-General for New South Wales v John Fairfax & Sons Ltd and Bacon[35] McHugh JA, with whom Glass and Samuels JJA agreed, said:

   Despite some statements to the contrary in earlier cases, the courts now recognise that it would be wrong to hold that a publication constitutes a contempt because it might influence a judicial officer: Ex parte McRae; Re John Fairfax and Sons Pty Ltd (1954) 54 SR (NSW) 165 at 177; 71 WN 113 at 121; R v Duffy; Ex parte Nash [1960] 2 QB 188 at 198; Vine Products Ltd v Green [1966] Ch 484 at 496; Attorney-General v Times Newspapers Ltd [1974] AC 273 at 301; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (at 58, 102 and 136).  This is because judicial officers by their training and experience are expected to put aside prejudicial remarks and material.  Magistrates in New South Wales now have judicial independence.  It is fanciful to suppose that a magistrate hearing committal proceedings could be influenced by extraneous material of the kind in question in the present case.  Day after day magistrates are required to hear prejudicial evidence for the purpose of ruling on the admissibility of that evidence.  On holding that the evidence is inadmissible, magistrates have no difficulty in putting the effect of that material aside.  In addition it is worth pointing out that no issue of guilt or innocence arises before a committing magistrate.  Moreover, at the time when this publication was made, the law concerning the hearing of committal proceedings was that laid down in Wentworth v Rogers [1984] 2 NSWLR 422. A magistrate had little scope under that ruling to weigh the effect of the evidence once a prima facie case was found. In my opinion it is not established that the publication of the article in this case was likely, or had a tendency, to interfere with the hearing of the committal proceedings.

   [35] (1985) 6 NSWLR 695 at 709.

4. The comments of McHugh JA are equally applicable to cases conducted by magistrates in South Australia.  As I have said, one of the factors critical to the likelihood of prejudice will be whether the trial is by judge or magistrate alone or before a jury.  The effect of publication of prejudicial matter on potential jurors and on witnesses who might be called assumes major significance, especially where the publication creates an atmosphere of prejudice and hostility to the accused.

   Consideration

5. As Mr Whitington QC, counsel for Francis, submitted, there are three possible types of contempt into which an allegation of this nature may fall.  The first is that the impugned conduct has the actual effect of interfering with the administration of justice.  That has not been proved on the evidence in this case.  It has not been shown that the accused was in fact prejudiced by what was said or that the proceedings were conducted in any different manner from that which did in fact occur, or that the result for the accused was other than what would have occurred in any event.  It was an agreed fact that the accused pleaded guilty to the charge in the Magistrates Court on 17 February 2006, but there is nothing to suggest in fact that he took that course as a result of anything that was said in Mr Francis’ talkback radio show on 26 October 2005, or that his ultimate sentence was so affected.  We simply do not know.

6. The second possible type of contempt is that discussed at some length above, namely that there is a real risk of interference in the administration of justice in the accused’s case.  This does not require proof of actual interference but an assessment of the likely effect of the publication – whether or not there was a real risk that the words spoken would interfere in the administration of justice in the proceedings against the accused which were then pending.  What happened in fact after the publication is not relevant.

7. The third possible type of contempt is where, irrespective of whether the publication has a tendency to prejudice the fair trial of particular proceedings, a publication of this nature tends to interfere with the administration of justice generally.  Such was the case in The King v Dunbabin: Ex parte Williams.[36]  The DPP submitted that it would do so by diminishing public confidence in the system of law and the integrity and impartiality of judicial officers.  I do not accept the submission.  It does not form part of the particulars alleged.  However, in any event I do not consider that such a consideration is relevant in a case of this nature.   Such a consideration does not arise out of the passages of the broadcast relied on by the DPP in support of this count.  As the facts in The King v Dunbabin suggest, it is a consideration more appropriate to direct criticism of the courts or of the result in a particular case.  It is more appropriate to a consideration of the type of situation the subject of count one in these proceedings.  Accordingly, in deciding whether count two in this case has been proved, I will not take this aspect into account but will concentrate on the likely effect of what was said on the proceedings involving the accused.

   [36] (1935) 53 CLR 434.

8. For the purposes of count two, the significance of what Francis said was his vilification of the accused, the contempt and hostility expressed towards the accused and Francis’ encouragement of others to take a similar view.  At one stage he purported to be expressing the view of the whole State that the accused was guilty of something, and that so serious was his “crime” that he should not even be allowed to remain alive.  The significance lay in the conscientious and deliberate attempt to poison the minds of the listening public against the accused and to campaign for his permanent incarceration, if not elimination.  Furthermore, he conducted the campaign in a manner which belittled anyone who might care to express a contrary or qualified view.

9. The accused was not being attacked for his possession of child pornography, being the offence with which he was charged, but for alleged facts and circumstances which, on his trial, might well be inadmissible and irrelevant.  The picture being painted of the accused was of a person of disrepute, unworthy to remain a member of a civilised society.

10. In considering whether that conduct constituted a real risk of interference in the administration of justice, the most significant facts, in my view, were that this was an indictable offence, that at the time of the broadcast the accused had not been required to enter a plea to the charge and that the accused was able to elect for a trial by jury.  If it were certain that the proceedings would be heard by a magistrate, assuming a plea of not guilty, the likelihood of the broadcast interfering with the conduct of the trial was negligible.  Based on the authorities to which I have referred, it must be assumed that no magistrate in South Australia, even if he or she heard the broadcast, would have been influenced by it.  If anything, given the circumstances surrounding count one and the tirade directed against the Magistrate on the bail application, a magistrate would be likely to want to ensure scrupulous fairness in dealing with the accused, both in the conduct of any trial and in imposing any sentence.

11. The authorities to which I have referred contemplate that there can be contempt in respect of proceedings before a magistrate sitting alone.  The facts relied on in support of count one constitute one example.  Another example may be in publishing material relating to the identity of the perpetrator of a crime where that is in issue.  However, where the publication is of material designed to besmirch the character of an accused, to allege general criminality or to allege prejudicial facts not relevant to the charge to be heard, that is the sort of material which a judicial officer, including a magistrate, is considered to be capable of putting out of his or her mind so that there is little or no likelihood of the course of justice in that case being interfered with.

12. However, the situation in this case was that there was no certainty that the charge against the accused would be heard by a magistrate.  At that time no‑one, perhaps not even the accused or his solicitor, was in a position to know what course he might take.  Possession might normally be relatively simple to prove.  However, no‑one knew if there might be some good ground for objection to the admissibility of that evidence.  The nature of the material, and whether it constituted child pornography[37] is a matter which the trier of fact, on a plea of not guilty, would have to decide.  There may have been good reason why the accused would want to have his case decided by a jury.  As long as that possibility existed, there were potential jurors whose minds were capable of and indeed likely to be influenced by the contempt and extreme disaffection for the accused then being incited by Francis.

    [37] For the purpose of s 63A of the Criminal Law Consolidation Act “child pornography” is defined as meaning material —

    (a)     that —

    (i)     describes or depicts a child engaging in sexual activity; or

    (ii)     consists of, or contains, the image of a child or bodily parts of a child (or what appears to be the image of a child or bodily parts of a child) or in the production of which a child has been or appears to have been involved; and

    (b)     that is intended or apparently intended—

    (i)     to excite or gratify sexual interest; or

    (ii)     to excite or gratify a sadistic or other perverted interest in violence or cruelty.

13. So graphic was the description, so unusual were the allegations and so persistent was Francis in reminding the public of the name of the accused that the allegations would be bound to persist in the responsive listener either consciously or subconsciously for long enough to be aroused and reawakened upon the trial of the accused on the possession charge.  Any juror, having heard or heard of the broadcast, could well be influenced to conclude any disputed facts against the accused because of the prejudice engendered against him by the broadcast.  In my opinion, that was the evil of the publication.

14. It is no answer to say that the accused ultimately pleaded guilty to the charge and was dealt with by a magistrate or by a judge and not by a jury.  At the time of the broadcast, the accused enjoyed the presumption of innocence and the entitlement to a trial by jury.  Not only were potential jurors being corrupted against him, but the broadcast had the potential to dissuade the accused himself from exercising his right to trial by jury for that very reason.

15. The likelihood of interference is not be judged by what in fact happened but by reference to the rights and protections which the law conferred on the accused at the time of the broadcast, and the objective likelihood of interference with those rights and protections.

16. I turn to other relevant considerations.  The publication itself was plainly intended by both defendants.  The intention to prejudge and to prejudice the accused was obvious.  While that is not an essential element, it is a matter of some aggravation.

17. While some delay could be expected between the time of the broadcast and the trial of the accused, I take a similar view of the effect of this broadcast that the trial Judge took of the offending publication in Hinch v Attorney-General for the State of Victoria.[38]  While the risk of potential witnesses being affected by the broadcast in a case such as this may be low, the nature and effect of the publication would be likely to persist for a substantial time or be readily revived in the mind of any potential juror.

    [38] (1987) 164 CLR 15 at 55-56.

18. For these reasons I consider that the charge of contempt alleged in count two of the summons has been proved.  The offending words were uttered by the  defendant Francis.  They were published by a radio broadcast in South Australia by the defendant Festival City Broadcasters Pty Ltd.  I find both defendants guilty of contempt as charged in count two of the summons.