Director of Public Prosecutions v United Telecasters Sydney Limited
[1989] HCATrans 203
..
.
"i
';;-~~
-
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S217 of 1988 B e t w e e n -
THE DIRECTOR OF PUBLIC
PROSECUTIONS
Appellant
and
UNITED TELECASTERS SYDNEY
LIMITED
Respondent
BRENNAN J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
United(2) TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 12 SEPTEMBER 1989, AT 10.19 AM
Copyright in the High Court of Australia
1 12/9/89
SIR M. BYERS, QC: In this matter, if Your Honours please, I appear with my learned friend, MR A. ROBERTSON,
for the appellant. (instructed bv the Directorof Public Prosecutions)
MR W.H. NICHOLAS, QC: If Your Honours please, in this matter I appear with my learned friend, MR G.O'L. REYNOLDS,
for the respondent. (instructed bv Blake Dawson Waldron)
BRENNAN J: Yes, Mr Nicholas. MR NICHOLAS: Your Honours, there are a number of matters which
we should perhaps raise now, with respect, namelv the seeking of the Court's leave to file a notice of
cross appeal and the notice of contention, if we mav.
BRENNAN J: Yes, Mr Nicholas. MR NICHOLAS:
If Your Honours please. Your Honours, we have
the documents. I am not sure whether they were circulated to the Court the other day.
BRENNAN J: I think all members of the Court have them. MR.NICHOLAS:
Y~~r Honours, the other matter,before mv learned friend begins, is the question of the showing of the
tape. The machinery is here, and so on, and we would be respectfully suggesting to the Court that it would
be useful for it to view the material before hearing
the submissions. We certainly, for our part, would be wanting to take the Court to it in due course. We have set it up and can tell the Court that there is probably about 20 minutes of viewing time and it is ready to go, but we would suggest, with great respect, that you should hear it and see it first, so that the rest of the argument can go on against that background.
BRENNAN J: Perhaps we need to understand what is the particular point which the showing of the video is intended to
illuminate.
MR NICHOLAS: Certainly, Your Honour. Your Honour, we, in our
case, raise it on a number of respects. The Court of Appeal had the tape played to it and we would say it
is absolutelv fundamental to understand how the
Court of Appeal came to the decision which it came to
to see the tape because, of course, the question
turned on the evidence, which consisted of some oral
evidence of a man called Burgess and, of course, theadmission into evidence of the cigarette packet,
together with the photograph of the posters, and
we would be wanting, certainly in our argument, to
~~ taking the Court to the actual exhibits, because
C2Tl/2/HS 2 12/Q/80 United(2) the court considered whether or not that material
should be available as an aid to the interpretation
by the iury of the matter, an explanatory of it.
Your Honours will appreciate from reading the
iudgments of the Court of Appeal, obviouslv e;ough,
that the content of the tape consists of some
choreography, people costumed in red and white and
other colours, and the Crown attached at the trial,
and certainly before the Court of Appeal, considerable
significance to the representation of these colours
and endeavoured to link up the colours as shown in
the programme with the colours on the pac~et of
cigarettes that was with the iury, together with the
colours shown in the ohotograph of the outside
street Poster.
(Continued on page 4)
C2Tl/3/HS 3 MR NICHOLAS, QC 12/Q/8Q United(2'l BRENNAN J: What is the issue to which this is directed,
the issue on this appeal to which this is
directed, Mr Nicholas?
t1R. NICHOLAS: The showing of the tape? BRENNAN J: Yes.
t1R. NICHOLAS: Your Honour, we raise it this way: the question in the appeal goes to the relevance of
the extraneous evidence, that is raised by my
friend, we would say, and we would suggest to the
Court that you would need to see the programme to determine the admissibility of the evidence that
was received at the trial in order to understand
the way in which it was dealt with both at the
trial - more importantly at the trial rather than
by the Court of Appeal.
BRENNAN J: That depends on the issue to which that evidence
is directed, does it not?
t1R. NICHOLAS: Yes, it would, Your Honour, but at the end of the day the Crown set out to prove that what
was published constituted an advertisement for
cigarettes and at the trial it set about doing
that by tendering this material and invited the
court to direct the jury, and of course the
jury themselves, to consider this material in
a particular way, namely to prove what, so it
was described, was in the public mind and to
aid the jurors in interpreting the effect of the
symbols, so it was put, that was conveyed in
the content of the tapa,that the viewer would make the connection and would get the message that this
was a cotmnercial promotion for cigarettes in
circumstances, Your Honour, where no cigarettes
were shown, there were no cigarette packets. The only reference, I suppose, was the use of the name "Winfield" on a banner which contained the
words "Winfield Cup 1984".
Before the Court of Appeal the ~atter was
argued on the basis - the court having seen
'~e Spectacular', so it was called - that the
entirety of this material was appropriate to be
received to aid the jury in interpreting the content
of the tane.
BRENNAN J: Mr Nicholas, I do not wish to interrupt you, if he wishes to do so, in the course· of
but is it right to say that it is really for manifest,
his argument, so that you can meet it, if need be,
in r. eply?
C2T2/1/JM 4 12/9/89 United(2) MR NICHOLAS: Certainly, Your Honours, but we will be saying
in any event that we will be raising questions
as to the capacity of the tape and also, of course,
as to the prejudicial quality of the exhibits that
actually went in.
McHUGH J: What do you mean by "capacity of the tape"? MR NICHOLAS: Whether, Your Honour, the tape either vi ewe.: alone had the capacity as a matter of law of am0Jnting
to an advertisement for cigarettes within the -
McHUGH J: But that is a matter for your cross appeal and
do you not need special leave to - - -
MR NICHOLAS: Yes, we do, Your Honour, with respect but,
Your Honour, we would also say - the capacity embraces not only the tape but the totality of the evidence which includes, of course, the packet and
the poster. We certainly do need the Court's leave for that and we would be wanting to make some
submissions why we should have it at the appropriate
time. · The prejudicial point, Your Honours, that
we want to go to will involve our submissions that
this material - and these are the exhibits,
Your Honour - assuming it was relevant far outweighed
any probative value it may have had. Your Honours will see from the contents of the exhibits references,
for example, to smoking being a health hazard and
so on at - - -
BRENNAN J: That depends on whether the evidence was admissible
or not, does it not?
MR NICHOLAS: It certainly goes to that question, Your Honour,
but we are preparing to meet my friend's submissions,
with respect, and in order to assume that the Court
will be looking at these exhibits and dealing with
the question of its probative value and its
prejudicial content, we would be saying it is going
to be necessary for the Court to look at the material in the tape to assess the prejudicial quality of
these exhibits and the extent of the probative - - -
(Continued on page 6)
C2T3/l/SH 5 12/9/89 United(2) McHUGH J: If it was admissible, how could it be prejudicial?
MR HICHOLAS: Oh well, Your Honour, it begs the question, the
admissibility - "relevant" is perhaps a better word.,
Your Honour.
McHUGH J: No, but in the context of this case .. MR NICHOLAS: Well, Your Honour, if it was - it would be - - - McHUGH J: It goes to the very issue. MR NICHOLAS:
If it was relevant that then throws up the question in a criminal case as to whether or not
its probative value transcends the prejudicial quality that it has, and we are - - - McHUGH J: Prejudicial value is only relevant in the sense - or the
issue of prejudice is only relevant in the sense that
it rntght distract a jury from the real question.
MR NICHOLAS: Yes, and we will be asserting that that is just exactly what it does, Your Honour, and we will be·
wanting to put some submissions about that. Those
are the - why we are suggesting, Your Honour, perhaps
out of turn, tha:: it would be appropriate for theCourt to see the tape at the outset.
BRENNAN J: Mr Nicholas, we will hear what Sir Maurice has to say.
SIR MAURICE: Well, Your Honour, so far as the appellant
is concerned, it is quite unnecessary that Your Honours
should be either elevated or bored by looking at some
20 or 27 minutes of video. What we say is that there
is an ample, or at least sufficient description of
the content in the judgments,and then from that the
question of admissibility of the evidence springs.
It is either admissible or it is not admissible.
BRENNAN J: You do not seek to have us view it as part of your
argument?
SIR MAURICE: Oh no, Your Honour, if Your Honours are curious - DAWSON J: Only because it is a waste of time - is that the way
you are putting it, that - - -SIR MAURICE: I beg Your Honour's pardon. DAWSON J: Only because it is a waste of time, there being a sufficient description otherwise, is that the way you are putting it?
C2T4/l/FK 6 12/9/89
United(2) SIR M. BYERS, QC SIR MAURICE: That is so, Your Honour, yes. DAWSON J: Is is not better to have the best evidence, in those
circumstances - I mean, we just have to take your
word for it that the ·description is
adequate.
SIR MAURICE:
Your Honour, all I was going to do was to read the passage from the judgment of
Sir Laurence Street, but, Your Honour, I have no great feelings about it, but all it does is take up time, that is all,Your Honour, with respect, and really it does not throw any light, as we would respectfully submit, on the question to be resolved. That is all I want to say about it.
(Continued on page 8)
C2T4/2/FK 7 SIR M. BYERS, QC 12/9/89 United(2) BRENNAN J: Well, rather than continue the debate we may as
well spend our time being elevated, or bored, by the
video.
MR NICHOLAS: As Your Honour pleases. SIR MAURICE: Might I just have Your Honours' permission. Perhaps my learned friend might indicate what part
of the tape he proposes to show us. Some of it, I understand, is relevant to his cross appeal; as
to that we would have submissions to make as to
whether there should be special leave in any event.
But, Your Honour, I would just mention that.
BRENNAN J: Yes. MR NICHOLAS: Your Honour, we simply just want to show the Court the so-called "Spectacular" which was the
segment the subject of the charge. I think it is connnon ground that it was shown in the afternoon
of this Saturday, the grand final day, in Sydney -
the rugby league match - when this television
station was covering the entire day's football fair
and so there were preceding football matches.
There were - it will be apparent as we fast-forward through it to get to the poin½ Your Honour -
advertisements in the conventional way. Then there was the "Spectacular" which was shown between the
end of the second grade and the commencement of
the grand final first grade match. Then we propose to cut it out there, Your Honours.
BRENNAN J: What point are we looking for?
MR NICHOLAS: You are looking at the "Spectacular". BRENNAN J: I appreciate that, but is there some particular problem that we should be addressing our minds to?
MR NICHOLAS: Well, Your Honours will see that it is called -
I think it is called the "Winfield Spectacular" for the Winfield Cup 1984. You will see colours - be red and white; you will see, also, that there
are other usages of the combinations of red andwhite in the clothing of people who appear in this
spectacular. For example, the sponsor of this show
was the company, NEC, whose clothings and symbols
are in red and white.
On to the field, Your Honours will see, come
the dancers: some are clad in red costumes, some
are clad in white costumes. There are also people
on a trampoline clad some in white, some in red.
There are lots of othe~ ~olours as well.
C2T5/l/DR 8 12/9/89 United(2)
}1R. NICHOLAS (continuing): There is at the end of it all
a banner unfurled on which, I think it is red
in colour, on which is printed the words"Winfield Cup 1984" and then after that in
other colours, other activities, Your Honour,
there is some patriotic music, matters of that
sort. I am not sure that I can be more helpful.
BRENNAN J: I think we will just watch it. }1R. NICHOLAS: I think it is best to do it that way, Your Honours.
(VIDEO VIEWED BY COURT)
(Continued on page 10)
C2T6/l/CM 9 12/9/89 United(2) BRENNAN J: Is that all we need to see, Mr Nicholas?
MR NICHOLAS: I think it is, Your Honour. It goes on for
another ad with the NEC people and then leads into the beginning of the game, but strictly speaking that is the end of the segment.
BRENNAN J: Nothing for your purposes that you wish to select?
Yes, Sir Maurice?
SIR MAURICE: Your Honours, there is - possibly I should hand up our contentions and in relation to - I will
hand up, though I will not go to them at the
moment - the contentions relating to the cross
appeal and my friend's contention.
Could.I just briefly take Your Honours
through them, section l00(SA) we say says
nothing as to the motive of proof of is breach.
Then we say the Court of Criminal Appeal wrongly
dealt with the question before it as one of
construction. The question of fact for the jury was whether the televised material was an
advertisement for cigarettes. The name "Winfield"
was used and shown, as were particular colours. The word "cigarette" was not used. Evidence of what the word "Winfield" and the colours signify
or indicate was relevant to the question whether
the televised material was an advertisement for
cigarettes. So also was the oral evidence of Mr Burgess that Rothmans of Pall Mall (Australia)
Limited marketed no products other than cigarettes
under the name "Winfield". Where a commodity is
or may be represented by a symbol, for example
colours, or by a brand name of no general meaning,or by a word of general meaning used in a secondary
sense, evidence is admissible to show what the
symbol or name or word signifies, in this context
that the name is the name of a brand of cigarettes
and the colours the colours of its get-up. We have referred to a decision of the Full Federal Court. There are no soecial rules of evidence for
advertisements - a bit of a truism oerhaos.
The publication has to be viewed in.the light of
the surrounding circumstances.
(Continued on page 11)
C2T9/1/JM 10 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE (continuing): The authorities referred to by Mr Justice Lee and Mr Justice Hunt are irrelevant;
they deal with different questions. The obsenity cases deal with the question of current community standards which is a question for the jury and
the defamation cases are concerned with the meaning
of English words and whether their publication was
defamatory. Those are questions for the jury but not all extrinsic evidence is excluded and there
is a reference to Your Honour the presiding Judge's
judgment in READERS DIGEST. The meaning of "Winfield" is analogous to a case for true innuendo. That is just a bit of a flourish, perhaps, Your Honours.
The consequence of the rule applied by the Court of Criminal Appeal is that the newer the brand of cigarettes and the greater the need to
advertise, the less likely is a conviction and
the more likely is harm to that which the legislature
intends to protect.
Now, I do not know whether Your Honours have
read the judgments in the court below, but the
relevant passages, if Your Honours go to the first
passage we have referred to which is at page 66,
the judgment of the Chief Justice, His Honour says
really, one should begin at the bottom of the preceding
page:
In my view the appellant's
that is, my learned friend's -
contention represents the correct construction
of this penal statute.
That is that no evidence at all was admissible.
The section is quite clear and specific.
It proscribes the televising of an advertisement
for cigarettes. The proper course of the trial
involved the jury being invited to view the segment and then to determine for themselves whether it was an advertisement for cigarettes. Plainly enough, there were matters upon whuch it was necessary for them to be directed upon what they should consider in deciding whether the segment was an advertisement. But the ultimate factual decision was whether this was an advertisement for cigarettes to be made
by them -
this was cigarettes to be made by them -
upon their understanding as ordinary members of
the community, not upon the basis of extraneous
evidence explanatory or interpretative of the basic
material relied upon by the Crown.
C2Tl0/l/SH 11 SIR M. BYERS, QC 12/9/89 United(2) SIR MAURICE (continuing): !hen His Honour refers to the
ROTHMANS' decision. His Honour then refers to a iudgment of Sir Harry Gibbs which includes a passage
which His Honour does not cite but sayin,g, "Well,
of course, vou can look to all the surrounding
circumstances in relation to the admissible underthe rules of law relating to the evidence of extrinsic
matter", and I will take Your Honours to that later,
Then His Honour comes again to page 68 where
he says at the bottom:
I derive little real assistance ..... This
is a penal statute which fastens a penal
consequence upon telecasting an advertisement
for cigarettes. It seems to me that the
proper construction of that statute
involves the tribunal of fact considering
whether the material in question is or isnot an advertisement for cigarettes.
Then Mr Justice Lee who begins at page 70, line 8,
says:
The facts in this matter have been set out
..... The appeal raises the question of
the meaning of the expression "televisingof an advertisement for, or for the smoking
of, cigarettes" ins lOO(SA) to be read in
association with sub-s 10 of that section.
On the one hand -
he sets the contentions and he comes round about
line 25:
If the iury, using its general knowledge
of our community, does not form the view
that it is viewing an advertisement for
cigarettes, that is a finding that no
offence has been committed. In my view,
the latter is the correct construction of the section.
(Continued on page 13)
C2Tll/1/HS 12 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE (continuing): Then he ~oes on. He refers to Rothmans and he refers to Sir Harry Gibb's Judgment and then at page 72, about line 1~ he says:
The construction which I propose is, in my
view, further reinforced by the approach
which has consistently been taken by the
courts in reference to the statutes dealing
with obscene, indecent and blasphemous
literature and productions. The courts there have consistently maintained that what
must be looked at is that which is alleged
to be obscene, indecent, etc and nothing
more, in order to judge its quality.
Then His Honour comes back to page 73, line 10,
and His Honour says:
On a proper construction of the section, that material -
that is to say,if Your Honours go to the top of
the page -
material was admitted into evidence that Winfield
produced only cigarettes. A packet of
cigarettes with the distinctive red and white
marking was admitted and also a card referring
to Winfield cigarettes. This was before the
jury. The segment of the telecast which was
alleged to be an advertisement contained no
showing of any cigarette pack, nor showing of any
cards advertising Winfield cigarettes and the
word "Winfield" only occurred in reference to
the Winfield Cup.
Then he says:
On a proper construction of the section, that material was wholly irrelevant and accordingly
should not have been admitted. The case went should go to the jury as his directions make to the jury, and his Honour intended that it clear, on the footing that the jury decide the issue by reference to the entirety of the evidence before it, and, that being so, it is impossible to leave the verdict stand. There must be a new trial.
C2Tl2/ l/CM 13 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE (continuing): Then, Mr Justice Hunt says - it is not qui clear, at least to me, on what basis His Honour puts
this, but he says:
The principal issue which the jury had to
determine in this trial was whether at least
a significant number of viewers would haveperceived the matter telecast by the appellant
to be an advertisement for cigarettes. Theonly material which was relevant to that issue
was the telecast itself, together with any
other matters which were within the general
knowledge of the community.
Then he refers to JONES V SKELTON and ROTHMANS and so on. What Their Honours have said, and I think,
| • | question of construction, he says that the |
perhaps, Mr Justice Hunt is also saying this as a of the statute - excludes evidence that the name "Winfield" is the name of cigarettes and that the colours, red and white, are associated with
cigarettes and that the packets were the packets
of cigarettes.
Also, Your Honours may have noticed a little
lozenge on the television behind the goal post
which also appears on one of the exhibits in the
sort of gold colour. Now, we submit, Your Honour, that the evidence is admissible. The statute forbids the televising of an advertisement of
cigarettes; it says nothing as to how you prove it and, therefore, one must approach the section upon
the basis that the legislator intended that
advertisements, whether they be coded, allusive
or explicit, were forbidden if they were advertisementsfor cigarettes.
So, where the command was sought to be evaded
by not using the word "cigarettes" but by using
matters associated with cigarettes and,
indeed, only with cigarettes - for example, the name "Winfield"- evidence was admissible before
the jury of the fact that "Winfield" was the name
of a cigarette; of the significance of the
colours, that they bore a particular significance,
namely, they were associated with packets of
cigarettes and that even the brown or golden
colour, which Your Honours may have noticed at
one stage, also appears on the packet of cigarettes.
(Continued on page 15)
C2Tl3/l/DR 14 SIR M. BYERS 12/9/89 United(2)
SIR MAURICE (continuing): Now, that is perhaps not as striking as all those well-drilled ladies, as His Honour
the Chief Justice referred to them, but, Your Honour,
it is quite clear, in our respectful submission,
that one could lead evidence chat the advertisement
was directed to cigarettes, and there is certainly
nothing in the statute which prevents that conclusion.
DAWSON J: What is an advertisement, Sir Maurice? SIR MAURICE: I beg Your Honour's pardon? DAWSON J: What is an advertisement? SIR MAURICE: Well, an advertisement is something which calls
attention to something else. For example, Your Honour, of cigarettes. If one were to use the nam: ~'Tchaikovsky", I suppose, that would call to mind music - - -
if I were to say, as I did in my degenerate days when mind a name
McHUGH J: Well, it must do more than "call to mind'~ On that·
basis any public discussion of cigarettes smoking
would be an advertisement. Surely it must draw the
attention of a section of the public in a manner
calculated to promote the sale of cigarettes.
SIR MAURICE: Well, I do not know that we would dispute that, Your Honour. Really, I do not think we would.
When it says "an advertisement for cigarettes" it
conveys the notion that it is in favour of them, and
in that sense it perhaps promotes the sale, but, now
you can do that without saying "We are in favour of
selling cigarettes", or without showing people who
are smoking cigarettes.
DAWSON J: I just wondered whether intention was involved, it being a criminal intention.
(Continued on page 16)
C2T14/l/FK 15 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE: Your Honour, the suggestion has been no. Could I start off and perhaps remind
Your Honour of what Sir Harry Gibbs said
first of all in a case which is renorted in the
Australian Law Journal and which went to the
Full Court, and which is referred to in theFull Court of the Federal Court case to which I
will come in a moment? Your Honours, the case
is DEPUTY CO11M.ISSIONER OF TAXATION (COMMONWEALTH)
V ROTARY OFFSET PRESS, 45 ALJR 518.
The case really concerned the SALES TAX
(EXEMPTIONS AND CLASSIFICATIONS) ACT. The
exemptions included - it is set out in the
first paragraph:
"periodicals ... but not including ..... (c)
catalogues or price lists; ... (e) advertising
matter; or (f) ... periodicals published or
to be published for the purpose or as a means
of advertising the business or products of
the publisher or of the person or persons for
whom they are or are to be published", andin item 54 "Newspapers".
Then they set out the facts that there was this
Real Estate Institute publication which was
published by a co-operative company and had a
circulation of 45,000:
(1) as to 65.7 per cent -
it consisted of:
(a) classified order material, including
photographs submitted by members, for the
inclusion of which the member submittingit was charged, giving particulars of
properties ..... and (b) advertisements
specially inserted by members and paid for
by them' (2) as to 1.07 per cent advertisements
submitted by persons who were not members of the co-operative; (3) as to 27.4 per cent
material submitted by the co-operativeconsisting of particulars and photographs
inserted in respect of properties newlylisted in the multiple listing service; (b) as to the remainder, articles of interest to owners, buyers and tenants of real estate - and so on. It was held it was not exempt.
His Honour, having come to the matter, sets
out the contents of the nublication at the bottom
of page 519 and then continues that on to page 520. At page 521 His Honour says, about between E and F
on the left-hand side:
C2Tl5/1/JM 16 SIR M. BYERS, QC 12/9/89 United(2) The question that first arises is
whether the publication is exempt within
item 51. It is not contested that it is
a periodical but it is contended on behalf
of the plaintiff that it is a periodical of
one of the kinds covered by pars. (c), (e)
or (f). It does not seem to me that The
Realtor is a catalogue or price list ..... It
is true that the publication does systematically
list properties for sale in order of their
localities and that the prices asked for the
properties are stated, but it would be to
strain language, and to fail to recognize
the shades of meaning of the words, to say
that The Realtor is a catalogue or price list.
Then he says:
I consider that the publication does not come
within par. (f).
His Honour further considers the matter and begins,
as it were, positively, on the next paragraph,
on the right-hand column, with this:
The question remrins whether The Realtor
is "advertising matter" and within par. ( e).
The word "advertise" means to make generally
or publicly known, or to give public notice
of, but the phrase "advertising matter' in
the context of item 51 must have a somewhat
more limited meaning, and must be restricted
to published announcements of a business kind,
for example, calling attention to the fact
that property is for sale and setting out its
qualities, especially the desirable ones.In my opinion, it is clear that the greater part of the material contained in The Realtor
is "advertising matter". It seems to me that
all the parts of the publication other than
the articles and questions and answers and
advertisements - there is no other word by the "fill ins", indexes, mastheads etc. are
which they may properly be described. On behalf of the defendant, it was conceded that some of the published material was "advertising matter" but it was said that, in deciding what is "advertising matter" and what is not, it is necessary to have regard to the purpose
with which the matter was published and that
the evidence showed that the purpose withwhich some of the material was published
was not an advertising purpose.
(Continued on page 18)
C2Tl5/2/JM 17 SIR M. BYERS, QC 12/9/89 SIR MAURICE (continuing): United(2)
In particular, it was submitted that the
materuial published with regard to new
listings was inserted as a means of conveying
to the members of the co-operative information that the working of the rrultiple listing scheme
required should be transmitted to them and that
the "classified" or notifications about properties
already listed were also published as part
of the arrangement between the co-operative
and its members and were intended to provide
the members with information that it was necessarv for them to have in carrying out their businesses~
It was said that the evidence showed that the
advertisement of the properties referred to in
the announcements was not the sole or even the
dominant purpose which actuated their publication.
In my opinion, however, the subjective
purpose of those responsible for the publication is not the test in deciding whether a periodical
falls within par. (e). In par. (f) purpose is expressly referred to ..... The question whether a
periodical is "advertising matter" seems to me
to depend on whether the periodical, viewed
objectively and without regard to the actual
intentions of those publishing it, answers
that description. In other words, if the periodical on its own face appears to be
designed to promote the sale of property by
means of a public announcement that it is for
sale, and by giving a description of its
qualities and a statement of its price, it
is "advertising matter" notwithstanding that
its publication was, in fact, promoted not only
by the the desire to sell the property, but for
other purposes as well. Of course, the publication has to be viewed in the light of
rendered admissible by the ordinary rules those surrounding circumstances which are governing the admissibility of extrinsic
evidence for the purposes of construing adocument. If I may interpolate here, of course, there is no
restriction on the admissibility of any extrinsic
evidence here because we are not construing a document,
we are construing an advertisement. Then, he goes on: It, therefore, would not follow, to take an
example touched upon in the course of argument
that a reproduction, for historical purposes,
of an advertisement originally published in
times past would be "advertising matter".
It was submitted on behalf of the defendant
that to say that a publication is "advertising
matter" one must be able to say that it is
C2T16/l/SH 18 SIR M. BYERS, QC 12/9/89 United(2) "advertising matter as such" or "simply
advertising matter". If that be so, thosedescriptions could rightly be applied to
the whole of the publication, with the
possible exception of the articles and
answers to readers, whatever purpose may, in fact, have actuated the minds of those
who published the advertisements.
So that His Honour is saying - and he goes on - at
the bottom of that left-hand paragraph, there is a
sentence beginning about half-way, the last line:
With the increasing sophistication of modern
advertising methods -
His Honour says -
much "advertising matter" contains some
material which viewed alone does not appear
to be intended to promote the business of
the advertiser. When the publication is looked at as a whole, it seems to me that tne
articles and answers to questions are, like the
"fill ins", indexes and mastheads, merelyancillary to the whole production and do not
alter its character ..... Having looked at the
various copies ..... that were put in evidence,
I have reached the conclusion that each copy
was "adevertising matter" -
and His Honour then goes on to consider the question
whether it is a newspaper and I need not worry
Your Honours with that. Now, Your Honours, that
went on appeal to the Full Court and the appeal
was dismissed. It is reported, Your Honours, in46 ALJR 609. Mr Justice McTiernan says that the
appeal should be dismissed:
I can find no fault with the finding of fact
made by Mr Justice Gibbs, and I think that
they are entirely correct having regard to
the evidence. It follows from those findings, that the question whether the article in question was a newspaper or not must be decided against the appellant. That question is a question of fact. Then, Mr Justice Menzies agrees:
It appears to me that the learned trial Judge's
conclusion that this publication was not exempt .....
was correct.
I do not w i sh to add to the reasons . M.- JLstice Ste,:h:n only says something in relation to the newspaper.
Mr Justice Mason agrees with what Mr Justice Gibbs said.
C2T16/2/SH 19 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE (continuing): Your Honours, there is a fairlv extensive consideration of this sort of question, i:ndeed,
this section of the Act, by the Full Federal Court in a case of ROTHMANS OF PALL MALL (AUSTRALIA) V
AUSTRALIAN BROADCASTING TRIBUNAL and BENSON AND
HEDGES V AUSTRALIAN BROADCASTING TRIBUNAL,
(1985) 5 FCR 330. It is also reported, Your Honours, in the Australian Law Reports, to which I can give
Your Honours the reference if necessary - 58 ALR 675.
Your Honours, this was a question under the
ADMINISTRATIVE DECISIONS(JUDICIAL REVIEW)ACT
and the question is whether some directions, if
I may so call them, of the tribunal were wrong
in law, and to consider that the court considered
both section 100, which was in the same terms then
as it is now and in which it has continued to be,although I think the broadcasting provision is slightlv
different - I am sorry. In the BROADCASTING AND
TELEVISION ACT section lOO(SA) has been extended to
apply to tobacco products and there is a similar
provision in the BROADCASTING ACT. The BROADCASTING AND TELEVISION ACT applies to the old licences and
the BROADCASTING ACT, as I understand it, applies to
the new. So it is still in force but there is no substantial change, nor is there any substantial
change to subsection (2).
Their Honours set out what the tribunal did,
then at page 338 Their Honours say, about the third
line from the top:
The first question relates to the
meaning of the phrase "advertisement
for cigarettes" in slOO(SA). Counsel for the appellants presented no argument to deny that, in ordinary
parlance, the word "advertisement"
standing alone, has the meaning which
the Tribunal attribued to it in cl 2.2.
That is set out at page 333 of the Federal Court Reports and page 678 of the Australian Law Reports.
What the tribunal had said was - towards the bottom
of page 333:
The Tribunal considers that 'advertisement'
means:
matter which draws the attention of the
public, or a segment thereof, to a
product, service, person, organization
or line of conduct in a manner calculated
to promote or oppose, directly or
indirectly, that product, service,
person, organization or line of conduct.
C2Tl7/l/HS 20 SIR M. BYERS, QC 12/9/89 United(2) If I could go back, Your Honours, to page 338 of
the Federal Court Reports which is 682 of the
Australian Law Reports, they say:
The first question relates to the
meaning of the phrase "advertisement
for cigarettes" ins lOO(SA). Counsel for the appellants presented no argument
to deny that, in ordinary parlance, the
word "advertisement", standing alone, has
the meaning which the Tribunal attributed
to it ..... They contended, however, thatthe question whether particular material
constituted an advertisement for cigarettes,
or for smoking, must be determined obiectively;
the question being whether, in its essential
character and nature on its face, the
material was an advertisement for cigarettes
or for smoking. They criticised the "reasonable person" test referred to in
cl. 24 of the Tribunal's Policy Statement.
Counsel referred to DEPUTY COMMISSIONER OF
TAXATION V ROTARY OFFSET.
Their Honours then referred to a passage which was included in a passage to which I have referred
Your Honours.
(Continued on page 22)
C2Tl7/2/HS 21 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE (continuing): Your Honours, that includes the passage relating to the admissibility of
extrinsic evidence which is about 10 or 12 lines
from the top of the quoted passage. So that is what Their Honours had in mind. And then, Their Honours go on and say: His Honour's reasoning was approved, ..... The
approach :aken in that case is equally apposite
to a decision by the Tribunal on the question
whether particular matter falls within slOO(SA).
That issue is to be objectively determined; the
question being whether the material, on its
face and without reference to the actual
intentions of those concerned with its
production or transmission, appears to be
designed or calculated to draw publicattention to, or to promote the sale or
use of, cigarettes or to promote the practice
of smoking. It does not matter that some part
or parts of the total material do not, in
itself or in themselves, answer the description
of an advertisement for cigarettes or for
smoking. The question is to be determined by reference to the nature of the material, considered
as a whole. It is, of course, a commonplace of
cinematic and television advertising that a
significant proportion of the total footage is
material free of any discernible commercial
message, being designed primarily to attract
and develop viewer interest.
Then they go on and refer again to what
Mr Justice Gibbs said in a passage which I do not
think I need refer to. Then the next paragraph is: Several subsidiary matters, in relation to the
meaning of the phrase used ins 100(5A), were
argued on behalf of the appellants. First, it
was said to be a requirement of the subsection
that cigarettes, cigarette tobacco or the practice of smoking be expressly referred to in the advertisement. Thus, it was said, material which include a reference to the name of a brand of cigarettes but which made no use of the word "cigarette" and which contained no picture of a cigarette could not, as a matter of law, constitute an advertisement for
cigarettes. We are unable to agree. It is, no doubt, true that the more explicit the reference to cigarettes the more readily it may be concluded, by the fact finding body, that the material constitutes an advertisement
for cigarettes. But methods of human communication
C2Tl8 / 1 /Cr: 22 SIR M. BYERS, 12/9/89 United(2) are almost infinitely various, and often
extremely subtle. A word, a picture, or a
fragment of music -
and I think Your Honour heard one on the broadcast _ may be capable of conveying a message, through
association of ideas, to an informed audience.
For example, an advertising jingle may have
become so well-known to the people of a
particular place, or perhaps of a particular
generation, that its presentation to those
people - even without words or pictorial matter -
is likely to cause all or many of those people
instantly to bring to mind the product with
which it has become associated. See, for
example, the ice cream van chimes held to be
played "for the purpose of advertising" in
REYNOLDS V JOHN (1956) 1 QB 650. Similarly in
relation to names; a corporate name may be so closely identified with a product that the
mention of the name brings the product to
mind. It does not follow, of course, that every
presentation of the musical jingle or use of the
corporate name will constitute an advertisement for
the product; that question must be answered by
reference to the circumstances of the particularcase.
DAWSON J: What does that mean?
SIR MAURICE: That means it must be - DAWSON J: That goes to the intent:ion of the person who is
playing the tune.
SIR MAURICE: Well, I do not think so. I do not think that
Their Honours say that because they have especially
disavowed that earlier.
DAWSON J: It must mean something like that, because if I play
"Greensleeves" I am not advertising ice cream but if someone else does, they are.
SIR MAURICE: No, Your Honour. It is perhaps the circumstances. It must be objectively.
DAWSON J: Yes, if I play it while - - -
SIR MAURICE: Yes, if Your Honour gets into the band and plays it, a most unlikely assumption, but if that were to
happen perhaps Your Honour could be accused of that.
They go on:
But there is no warrant for asserting, contrary to
hun.an experience, that mattelt in which there is no
· expr~ss referenee-to-"a:·product · is incapable of
fulfilling the essential function of an
advertisanent for that product:
C2Tl8/2/Q1 23 SIR M. BYERS , QC 12/9/89 United(2) the drawing of public attention to, or the
promoting of the sale or consumption of,
that product. We agree with a comment of - Acting Justice Moffitt, I think he was then -
in TZINIOLIS RE HARVEY (1959) 76 WN (NSW) 686,
a case concerning advertising by an unregistered
medical practitioner in which, at 689, his
Honour said:
It is well known that the drafting of an advertisement is a somewhat different
process and requires a different skill
from drafting, say, a conveyance
perhaps a startling observation -
because the former is primarily concerned
with the impression or inference that will
be gained by the average reader or observer
who will not be expected to have any
special or technical knowledge of the
subject matter of the advertisement. An advertisement may therefore advertise a
matter which it does not positively state,
but which the advertiser intends the
reader to understand, and which the reader,
by reason of the terms used in the framingof the advertisement, does understand, and
in that sense that matter is advertised.
(Continued on page 25)
C2Tl8/3/CM 24 SIR M. BYERS, QC 12/9/89 United(2) SIR MAURICE (continuing): In other words, if there is there the allusion, the indication that can be picked up, they say that is sufficient. In that case,
the mistake that His Honour Acting Justice Moffitt
was concerned with, there was a plate by a
doctor who was not registered here but was
registered overseas, which said "Not registered in
New South Wales, registered at 'such-and-such a
place and that was held to be an advertisement,
I think, under the MEDICAL PRACTITIONERS ACT.
At any rate, Your Honours, I do not propose to take Your Honours to the report.
The relevant
part of it is set out. Next they go on to this question of "for" which Your Honour Mr Justice McHugh
raised, the preposition "for". Now, Your Honour,
it could be, it is an advertisement for cigarettes so
one has the notion of 'an advertisement" and ''.i:or". So, Their Honours are saying, the preposition "for"
and they argued, that is counsel argued:
that its meaning was narrower than "in
relation to" and suggested that it may mean
"for the promotion of". We agre~ that it is narrower, and it appears from the Parliamentary
history of the legislation which added
subss (SA) and (10) - to which we were referred -
that this was deliberate. Parliament
apparently was concerned not to prohibit the
transmission of material designed to persuade
viewers against the use of cigarettes.
Particularly under those circumstances, the
word "for" should be read as meaning "in
favour of" or "on behalf of". The prohibition is against advertisements tending to promote
or support cigarettes and their use, and not
against those of the contrary tenancy.
That rather supports, or expresses the same view
as I think fell from Your Honour. Thirdly, counsel for the appellants argued that it was inherent in the use of the word "advertisement" that the person transmitting
the material - in this case the licensee -should have done so for payment or other
reward. They called attention to s 100(2) and (3) - which said, "well, you can televise advertising
matter and you have got to publish your charges."
They go on to say:
subsections which clearly have in mind the transmission of advertisements for reward.
No doubt it is usual for those publishing
advertisement, including advertisements oncc:mnercial
C2Tl9/l/DR 25 SIR M. BYERS, QC 12/9/89 United(2) television stations, to seek reward for
their services. But exceptions readily come
to mind; for example publicity for products
or events associated with a television
program and community service announcements.
In its ordinary meaning the word "advertisement"
may, or may not, be used to refer only to
material transmitted for reward. As always, the matter must be resolved by reference to the
context in which it is used and such indications
of legislative intention as may be available.
In the present case, there is little room for doubt. Subsection (10) was added to s 100 by
the same section of the amending Act as was
subs (SA) and for the purpose of providing an
exception to subs (SA), amongst other subsections.
That subsection exempts from the operation of
subs (SA) the accidental or incidental televising
of advertising matter "in circumstances in which
the licensee does not receive payment or other
valuable consideration" for televising theadvertising matter. The reference to payment
is a clear indication that Parliament had in
mind that a licensee may televise advertising
matter other than for payment or other valuable
consideration; to be excluded from the -
then it is really a new sentence -
operation of subs (SA) the "advertisement" must
be transmitted both accidentally, or incidentally,
and without receipt of payment.
Your Honour, of course, the prohibition, itself, says
you cannot do it. Now, if you cannot do it, obviously you cannot be paid for doing it. So the whole notion of (SA) is against the idea that the
advertisement is only one for which one has paid
for.
TOOHEY J: Sir Maurice - - - SIR MAURICE: Yes, Your Honour.
TOOHEY J: - - - I am not sure how these passages assist the appellant's case? What is there in what has been
said by the Court in ROTHMANS that would justify
the admission of extraneous or extrinsic evidence?
(Continued on page 27)
C2Tl9/2/DR 26 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE:
The fact that one can say that the use of a word, say, a brand name, the use of a brand name
can carry the notion of an advertisement for cigarettes. I:-bw, how one establishes that in any given case depends upon what the tribunal is; if it is the jury, one establishes it by evidence. There is nothing in this case to say you cannot admit it in, indeed -
TOOHEY J: But, equally there is nothing to say that you can,
is there?
SIR MAURICE: Well, except the reference to Sir Harry Gibbs'
judgment, which explicitly refers to the
admission of extrinsic evidence, which is quotedwith approval and the judgment suggests, and that is at page 338, Your Honour will remember, but Their Honours were not dissenting from anything His Honour was saying. McHUGH J: But is not the high-water mark, from your point of view, the sentence which begins right at the bottom of page 339: A word, a picture, or a fragment
of music may be capable of conveying
a message, through association of ideas.
SIR MAURICE: Yes. McHUGH J: But, in a sense, that begs the question, does it
not , for the purposes of this appeal, "How is the audience informed?" and if the jury is directed that,
by reason of their general understanding of things they could draw on that understanding, and if they thereby associate the sort of material that we have
seen with an advertisement for cigarettes, then they
are entitled to do so; that is one thing. It may be
quite a different thing to say that the jury is
entitled not only to draw on their general
understanding, but to be better informed by evidence
as to what significance the particular word has.
SIR MAURICE: Well, Your Honour, there is nothing in the
section which prohibits it to suggest that evidence
indicating what the advertisment was for, what it was
promoting, was inadmissible - nothing to suggest
that, and there is nothing in this judgment, with
great respect, to suggest it, particular when
authority is quoted which says, "Well, you may admit
extrinsic evidence", that is, of course, what
Sir Harry Gibbs said, with great respect.
DAWSON J: The test is whether the evidence is relevant. SIR MAURICE: That is so, Your Honour.
C2T20/l/FK 27 SIR M. BYERS, QC 12/9/89 United(2) DAWSON J: If one of the things that has to be established
is a relationship between the matter that is
alleged to be an advertisement and a product,
surely you collect the evidence to show the
relationship.
SIR MAURICE: That is our submission. DAWSON J: Whether or not it has to be a matter of general
knowledge is another question. I mean, I would not know whether a Winfield cigarette packet was or
was not coloured red or white, but the evidence wasin and I look at the spectacular and I may or may not see a connection, but the evidence is relevant for that purpose. .SIR MAURICE: That is what we submit, Your Honour. DAWSON J: Then there is another question; does it have to
be a matter of general knowledge? I do not know the answer to that. SIR MAURICE: Your Honour, once it is said to be relevant then one must be able to say, "It is not admissible - although relevant, it is not admissible", so how does
one come to that conclusion? The way the learned -
I think three of them really, in the Court of
Criminal Appeal - came to that, we say, as~matter of construction of the statute - you came to
that conclusion, but clearly, with great respect,
you could not come to it as a matter of construction
of the statute, because the statute just forbade the
advertising for cigarettes. It said nothing as to
how you establish that a particular advertisement
was an advertisement for cigarettes.
(Continued on page 29)
C2T20/2/FK 28 SIR M. BYERS, QC 12/9/89 United(2)
McHUGH J: But your case has got to be, has it not, that to those familiar with the packet of cigarettes,
or with the hoarding, or with the association
between "Winfield" and cigarettes, this televised
segment was a promotion of "Winfield" cigarettes?
SIR MAURICE: That is so, Your Honour, that is what we say.
BRENNAN J: Why do you have to say that? Why do you have to say it is meaningful only to those who
already know about it?
SIR MAURICE: We do not have to say it, but we do say that. BRENNAN J: I though that was what you said to - - -? SIR MAURICE: No, I do not think His Honour said "only". Let me put it this way: the prohibition is
absolute. The question whether it is an advertisement for cigarettes is a question
that the tribunal faced with the prosecution
must decide. That is what Sir Harrby Gibbs
said and that is, we would submit, what was
obvious. The question then is: how is that
decided? We say it may be decided by showing
that the symbols or the meaningless word have
a meaning. It is for the tribunal then to
informed to draw the conclusion. It does notmatter whether they know it.
TOOHEY J: In some forms of advertising, Sir Maurice,
the method is to put the name before the public
before the product is put before the public so
that over a period of time, by watching television
or reading a newspaper, you become aware that there
is a name that has some significance but you do
not know what it is until eventually that is
unfolded and you are told that that name is the
name to be associated with a narticular nroblern.What about during that period.before the.product
constitute an advertisement for the product? itself has been put before the public; does that
SIR MAURICE: Yes, Your Honour. If it is an advertisement for cigarettes one if faced with this question,
and let me assume the case Your Honour has,
suppose I am about to manufacture and sell
cigarettes called "Gallaghers" and then, Your Honour,
one has a whole series of advertisements which
use the word "Gallagher", of which no one knows
and not in association with a cigarette but in
association with, for examRle, it could be a packet but one does not know whether it is a cigarette or not and so on. Your Honour, we would
submitt that does not cease to be an advertisement
for cigarettes because no on at that time can
appreciate that it is.
C2T21/l/JM 29 SIR M. BYERS, QC 12/9/89 United(2)
TOOHEY J: But you say "cease to be", is the question not whether it - - -
SIR MAURICE: Whether it is. TOOHEY J: - - -amountsto an advertisement? SIR MAURICE: That is so. Your Honour, in other words, if the choice is, as we submit it is, a choice
for the tribunal, the tribunal must decide:
is this "Gallaghers" an advertisement for
cigarettes? Then most people, no doubt,
would say, "Well, we don't know; we've never heard of 'Gallagher' . 11 But then they - - -
McHUGH J: But how could it be for an advertisement for cigarettes if no person who saw the advertisement
knew anything about cigarettes?
SIR MAURICE: But, Your Honour, it does not matter
what ·a person saw in the advertisement.
McHUGH J: It must matter.
SIR MAURICE: It does not.
McHUGH J: It must matter -SIR MAURICE: It really - Your Honour, it - - -
DAWSON J: You would call extrinsic evidence to show the connection.
SIR MAURICE: Yes, that is the whole point of it,
Your Honour. But it is Your Honours - well, it was the jury - - -
McHUGH J: You would certainly call extrinsic evidence
but that would be for the purpose of showingthat some segment of the community was aware of it, just as you do in a defamation action.
It cannot be up in the air. ( Continued on page 31)
C2T21/2/JM 30 SIR M. BYERS, QC 12/9/89 United(2)
S I R MA UR I CE : No , Your Honour , w i th gr ea t r e s p e c t . Th i s
is a prohibition. Would Your Honour allow me to steer clear of defamation?
McHUGH J: Yes. SIR MAURICE: It has led so many people into error in this case, and I say so with the greatest of respect, of course, but this is a prohibition which says
you cannot advertise cigarettes. Now, Your Honour, that - - -
McHUGH J: I do not know why you run away from defamation. There is a proper application of defamation principles in this
action very much in your favou~ I would have though~
SIR MAURICE: Yes, well, I do not run away from it but I say this is - of course, you can have two innuendos where
you can admit evidence and we would say, if necessary,
that is so but why - perhaps it is an exercise in
economy, Your Honour - does one have to worry about
defamation because we are not concerned with
defamation. That is all I am submitting to
Your Honours. But, Your Honour, the question is:
when you have the prohibition which is inserted
presumably for the protection of health, that is
the notion, and it says you cannot have advertisements
for cigarettes; it does not say how they are understood:it does not say that a significant section of the
community has to understand them; it does not even
have to say that anyone who sees the advertisement
has to understand i~ but if you are prosecuted the
question must be answered: "Was that an advertisement for cigarettes?" and, therefore, one must look at
what was broadcast or televised with the aid of extrinsic evidence in the case I have posed, of
all these proposals to launch a new cigarette on
the market and say, "That is an advertisement for
Gallagher. It is for smoking".
TOOHEY J: Does it have to be seen by anybody in order to be
an advertisement, Sir Maurice? I mean, obviously, you cannot - - -
SIR MAURICE: It may not be seen by anyone, it is - - -
TOOHEY J: No, but obviously you cannot publish an advertisement without - at least, I would not have thought - bringing
it to the attention of someone but, in terms of the
word itself.
SIR MAURICE: No, it does not. You may have someone televising who is televising at a bad hour, I suppose, when no
one sees it in point of fact but it is still a broadcast
or telecast of an advertisement for cigarettes.
C2T22 /1 / SH 3 1 SIR M. BYERS, QC 12/9/89 United(2)
DAWSON J: You have to establish a connection between the
advertisement and the product, do you not?
SIR MAURICE: Yes. DAWSON J: Having done that, it may be that the jury decides it
is a connection which would be discerned by no
one in which case they may decide it is not an
advertisement; it does not succeed in being an
advertisement. That is another question.
SIR MAURICE: That is so, Your Honour. The connection may
not be established. I quite agree with that, Your Honour.
DAWSON J: The evidence is relevant to try and establish it any way.
SIR MAURICE: Yes, Your Honour, and we say that is what all this case is about, really, and one should not, in
our respectful submission, concern oneself with the
quest ion whether it is understood by either a · significant number of viewers - the section says
nothing about that - or one viewer; whether themessage be explicit or covert.
McHUGH J: But it must be hypothetical, must is not, that, if it was seen by a viewer, then objectively he
would regard it in that light having regard - - - ?
SIR MAURICE: No, with great respect, Your Honour, if I might dissent, may I dissent? No, Your Honour. The
question is for the tribunal looking at it, just
as Sir Harry Gibbs looked at his publication and
said, "Well, I look at that" and the tribunal
of £act must decide it, whether it is a jury or a
judge or whatever; the tribunal of fact must decide
it. It will be assisted by evidence relevant to
decide that but it has not got to, then, ask the
question, having got the evidence in, "Now, how
would this be viewed by a reasonably intelligent viewer or a viewer of middle age?" or whatever,
or "a significant number of viewers. Your Honour, all that is quite alien to what the section is
saying.
(Continued on page 33)
C2T22/2/SH 32 SIR M. BYERS, QC 12/9/89 United (2)
BRENNAN J:
It is quite alien, I suppose you would say, to advertising philosophy.
SIR MAURICE: I suppose that is right too, Your Honour, but I am not putting it on that basis, but it is a
suggestion that I suppose you implant the notion,
you implant ideas into people's minds and that was
obvious from what my learned friend showed this
morning, what one was seeking to do.
Your Honour, I think that is the point we are
seeking to make and I think Your Honours have
understood it. I do not wish to reiterate it.
BRENNAN J: Sir Maurice, could I iust raise another - let us assume that there is an advertisement which iust
savs "Winfield" and vou adduce evidence to show
that Winfield is in fact a cigarette and that the colours, and so forth, are such that when the two
are brought to the notice of a particular person
there may be a connection seen between them. What do you say if the situation is, as it is here, that
what is being broadcast, as it were, at first
instance, is the Winfield Cup and, of course, it 1s
Winfield, if you like, the cigarettes, which are
sponsoring the cup, but what is being telecastis the Winfield Cup and incidentally, no doubt, the
name "Winfield" gets some ventilation.
SIR MAURICE: Yes, Your Honour. Can I answer Your Honour in
this way; suppose the prohibition was on advertising horse-racing and one had a football cup called
the Pharlap Cup. Now, there is no connection
between Pharlap and football. There is a connection, I think, or was a connection be tween peop 1 e 1 ike Da 1 y Messenger, I think, and football, but you choose the word "Pharlap" and associate it with horse-racing, but
you choose it in connection with this spectacular
and promoting football. Now, what one is doing by
that means, in our respectful submission, is saying
that the maker of the cigarettes is promoting its
sale by doing something popular in the public mind which would generate people's inclinations towards
his cigarette, particularly if he reinforces it by
using the name "Winfield" and by using the colours,
and so on.
So that the very - I shall not say "disparity" -
bu t d i s _i u n c t ion , a 1 mos t , be t we en the name "W i n f i e 1 d" and the cup suggests that the purpose of it is to
bring to note, to attention, the name of the
cigarette.
McHUGH J: Supposing the cup was sponsored by the Olympic Federation and was called the Olympic Cup, would
that be an advertisement for the Olympic Games?
C2T23/l/HS 33 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE: Well it could be, yes. It would depend on what was said. When one is saying - the whole purpose
of running these things, I suppose, Your Honour, is
so that matters are brought to public attention bv
means of a highly popular sport which we telecast
and I think one of those speakers said it would
be "rebroadcast over foreign countries", and so on. So thev
are aiming at a wide audience. So if the
prohibition was prohibition about advertising
the olympics and you say "Olympic Cup", what you
are doing is you are drawing attention to the
Olympic Games, and so on, and you say
"subsidized by the Olympic Federation", but that
is drawing attention to or promoting the Olympic
Cup.
BRENNAN J: But is it an incidental accompaniment of the televising of a football match within the meaning
of that phrase in subsection (10)?
SIR MAURICE: We submit not, Your Honour. First of all - I think that is one of the things my friend wants
to raise in his cross appeal.
BRENNAN J: Yes. Perhaps I shouJ.d leave it until that stage
if that is the relevant proposition.
SIR MAURICE: As Your Honour pleases. BRENNAN J:
But it does seem to me that there may be a problem anterior to that, and that is that can
one say that if there is a televising of a spectacular event which admittedly is promoted by a cigarette
company, whether or not televising that event whichcarries, no doubt, the name of the cigarette company, is to be viewed appropriately as an advertising of the cigarettes?
(Continued on page 35)
C2T23/2/HS 34 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE: Yes, Your Honour. If one only had the event, the case would be much more difficult from the
prosecution point of view I would imagine. But, what
one had was a whole performance: these ladies in thevarious colours, dancing and so, and having the flag with
"Winfield'on it. Your Honour, that was a specific action unrelated to the football game except as a meara of
drawing attention to the promoter and, we would say, by
reference to the colours, to his products. So, it was not just a simple case of saying, "Well, Winfield Cup
and nothing else", it was a case of saying, "Winfield
Spectacular and we will now" - I forget the exact
words - "we will now introduce the Winfield Spectacular"
and you had all these ladies coming out and I did not time
it, Your Honour, but it lasted for a very substantial
point of time so that you had all these ladies infront of the audience for some very considerable time.
So, it was an event, a specific event, separate from
and related to the football match only in the sense that
it took place before the football match and, no doubt,
in the sense that Winfield - - -
BRENNAN J: Well, take another example and I shall not press you beyond this.
SIR MAURCIE: Yes, Your Honour. BRENNAN J: Let us assume that there is a telecast which is, "Benson and Hedges proudly presents Giselle" and
the ballet follows. Now, is that an advertisement of Benson and Hedges cigarettes?
SIR MAURICE: Well, we would submit, it is, Your Honour. McHUGH J: Well, the Full Court in the Federal Court held in ROTHMANS'case that it was.
SIR MAURICE: It was. Well, I think this: they had a fight - - - McHUGH J: I think it was about the ballet - it was the cricket? SIR MAURICE: It was cricket and a fight, I think. Well, I think Their Honours held, as Mr Robertson reminds me,
that there was no error in finding that.
McHUGH J: It was also the ballet in that case. SIR MAURICE: The ballet comes up to, Your Honour, at page 342,"the Australian Ballet and Benson and Hedges".
And, then they go to the Test Cricket where you have the
Field of Battle - that is on page 342 where he had
medieval knights fighting and they said, "Well, there
the name; Benson and Hedges, was associated with theproduct" and that is the only product they have.
DAWSON J: It is a question of fact for the jury, a question of degree, really.
C2T24/l/JH 35 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE: Yes, Your Honour. I quite agree with Your Honour Mr Justice Dawson's question of fact. evidence was admissible and we submit that we have
shown that. We would concede perhaps that circumstances may differ but I do not wish to accept, in so far as it bears on the proposition we have put,
I do not propose to go any further in-chief
in relation to that,if Your Honour pleases.
BRENNAN J: Thank you, Sir Maurice. Mr Nicholas?
MR NICHOLAS: Your Honour, we have prepared some notes to hand up.
(Continued on page 37)
C2T24/2/JH 36 SIR M. BYERS, QC 12/9/89 United(2)
BRENNAN J: You have been able to exceed the usual three-page limit, Mr Nicholas?
MR NICHOLAS: Your Honour, what I have done, and I am about to hand up to you, is a two-page document
which is - we have tried to reduce it, Your Honour,and if I can hand up what we call "heads of
argument".
BRENNAN J: Yes, Mr Nicholas. MR NICHOLAS: Your Honours, what we wish to do is to take the Court to the evidence at the trial
to indicate how it was that this evidence,whichis the subject of the appeal, dealt with by the
Court of Criminal Appeal was introduced intothe case and how it was that the trial judge came
to deal with it in the way in which he did
because that goes a long way to explaining what
the Court of Criminal Appeal were endeavouring
to say in the course of their judgment. At the
end of the day, what they were saying - it is
perhaps not altogether clear, it was an
extempore judgment, with respect to them - but
one thing is very clear, that they were dealing
with this evidence in the way it was presentedto them, namely the totality of it; the
evidence of Mr Burgess, who is the Rothmans'·man,
the cigarette packer and the posters. I do not think Your Honours have yet had this material
and I will ask Your Honours to look at it in a
moment. But that is the way it was presented both at the trial and before the court and it was
presented on the basis, not so much that material
should be brought in to establish the fact that
the name "Winfield" was the brand name of
cigarettes; it was concerned to establish somehow
or other that there was an association in the
public mind with these colours, these symbols,
the name and so on. What we are saying, and indeed what the Court of Appeal, with respect, is
saying, is that when it comes to deciding the
ultimate question, namely whether the content of the segment, the subject of the pro sec ud.on,
constituted an advertisement for cigarettes, that
was an exercise which the jury should undertake
unaided,as far as interpretation and explanation
goes, by outside material. That is what
Their Honours were saying in their judgment, we
would put to Your Honours., and if that is correct
then we would put it to Your Honours that they
were correct, with respect to them.
It is a different thing substantially to
say that material ought to be enabled to be brought
forward to establish an association between the name
and the particular product. Thatha.s been the problem in this case at every level, with respect,
because the way the totality of this material got
before the jury at the trial was on, it will emerge
C2T25/l/JM 37 12/9/89 United(2) from the transcript, a substa~tially different
basis all together. The trial judge, and I want to take Your Honours to it, indicated
to the jury that part of their interpretative
process of the content of this broadcast would
involve them having in front of them in thejury room the material in the packet and the
material the subject-matter of the photograph, the outside posters, so that they could more readily conclude that this material too may have been in the mind of the average television
viewer on the day and therefore, so they wereinvited, they would more readily conclude that the viewer would have got a commercial message from the contents of the tape, therefore this tape was an advertisement for cigarettes, thus
they decide the ultimate question.
(Continued on page 39)
C2T25/2/JM 38 12/9/89 united(2)
BRENNAN J: Well, there are two questions in that, are there
not? The first is whether or not the evidence was
admissible and the second is whether the judge
misdirected the jury in point of law.
MR NICHOLAS: Yes, Your Honour. BRENNAN J: Now, whatever approach the Court of Criminal Appeal may have made to the subject, those are the two issues
which you have to address here.
MR NICHOLAS: Yes, I accept that, Your Honour. BRENNAN J: We need not worry too much about how things went
below. Those are the two issues that we should focus
on here.
MR NICHOLAS: Very well, Your Honour. Your Honour, assume for the moment, and we go to it at - well, if I can just
pick up our notes, Your Honour, on page 2 in paragraph 3
of the lengthier document, we say this, that the
evidence was neither tendered nor admitted to prove only that Winfield was a brand name for cigarettes.Then we refer to the situation that it was not put
to the Court of Appeal, that this was the purpose of the evidence and the basis of its admission, or that
it would have been legitimate to prove that fact
otherwise.
I will not trouble Your Honours with·
what we say about the Court of Appeal's decision
in the following paragraphs and would take you over
to page 4. On page 4, Your Honours - - -
DAWSON J: Are you saying the material was admissible or
inadmissible?
MR NICHOLAS: We are saying it was - this material, Your Honour? DAWSON J: We are talking about a cigarette packet and a poster,
as you call it.
MR NICHOLAS: Yes. DAWSON J: And that is what we are talking about here. MR NICHOLAS: Yes, we say that this material, this evidence, was inadmissible, not on the basis so much as that
it is irrelevant to prove the fact that Winfield
is the brand name of a cigarette. We are prepared to concede that one can properly prove that fact.
BRENNAN J: By that evidence?
MR NICHOLAS: No. This is the problem, with respect, Your Honour, and we say that if one looks at this material its
prejudicial quality far outweighs any probative
effect that - - -
C2T26/l/PLC 39 12/9/89 United(2)
DAWSON J: That is another question. I mean, either evidence is admissible or it is inadmissible, it does not
matter how it is put in. If it is admissible, it remains
admissible. Now, do you say the evidence was inadmissible on any ground?
MR NICHOLAS: We would say this particular evidence was inadmissible Your Honour.
DAWSON J: The cigarette packet and the poster, as you call it? MR NICHOLAS: Yes, Your Honour, because it would be excluded on the basis of its prejudicial -
DAWSON J: That is another question though. I mean, the evidence may be admissible and may be excluded in
the exercise of a discretion because its prejudicial
value outweighs any probative value.
MR NICHOLAS: I see how Your Honour is putting it. DAWSON J: But first of all you have to settle whether it is
admissible or not. Do you say it is admissible - •- -?
MR NICHOLAS: These particular items of evidence, we would say, are rendered inadmissible when one looks at the
contents of them; the words that are in them, the
colour, the get-up and so on, takes it a long way
from the sort of evidence one might otherwise expect
to see to prove the facts which - - -
DAWSON J: Well, can I try to get it this way? You say they
are relevant, but they should have been excluded
because their prejudicial value outweighed their
probative value.
MR NICHOLAS: Yes, we certainly say that, Your Honour. DAWSON J: I see.
MR NICHOLAS: We certainly say that.
DAWSON J: But is that all that you say? MR NICHOLAS: Well, then we come to the questions of directions
and as to how it ought to have been dealt with.
DAWSON J: Well, that is another question.
MR NICHOLAS: Yes, I realize that. DAWSON J: But the basis on which you say that the evidence ought to have been excluded is its prejudicial value, is
that right?
MR NICHOLAS:
Your Honour, perhaps what we want to say would be embraced in the sort of direction that a judge -
DAWSON J: No, forget about the directions for the moment. You say the evidence was relevant but nevertheless, as I understand you, should have been excluded because of its prejudicial effe<
C2T27/l/PLC 40 12/9/89
MR NICHOLAS:
Your Honour, our primary point is to the effect that it is for the jury, drawing on their experience,
to determine whether or not a message, the effect of which is to promote a product - - - DAWSON J: Let us forget about the jury for a moment. It is
the judge, first of all, who determines whether the
evidence goes in. Now, you say he was wrong and why do you say he was wrong in letting it in?
MR NICHOLAS: Because, Your Honour, it is wrong for the jury to have extraneous material to assist them in
interpreting the quality or nature of the message
that is said to be conveyed by the broadcast.
DAWSON J: Why is it wrong? Because it is relevant or
irrelevant?
MR NICHOLAS: Because it is irrelevant, because it is a matter which is for a juror to determine with
regard to his experience, knowledge and so on. Inother words, Your Honour, if the conveyor of the
message, relying on the content of his broadcast
as the vehicle for conveying it, fails to get his
message across to the viewer because the viewer,
drawing on his experience of everyday affairs,
does not make the necessary connection then, wewould say - - -
DAWSON J: It cannot be irrelevant for that purpose because
you first of all have to know what the alleged
connection is and the material is admissible for
that purpose. Then the jury can determine whether
the connection is made or not made by the material
which they see.
MR NICHOLAS: Well, Your Honour, possibly the difficulty I
am having in responding to Your Honour is
understanding this: whether Your Honour is inviting
me to accept that this material was admissible
or whether it is a relevant question to establish
the connection that we have been talking about. The latter one - - -
(Continued on page 42)
C2T28/l/DR 41 12/9/89 United(2) DAWSON J: That was the material that was admitted. Either
is was admissible or inadmissible. I am just seeking to find out what you say about it.
MR NICHOLAS: Your Honour, we say principally that it is inadmissible, because it constitutes material
which would go to aid the jury in interpreting
the nature of the material that has beenbroadcast.
TOOHEY J: But surely, why is it not admissible in the same way that you concede that Mr Burgess's evidence was admissible to establish that "Winfield" was
the brand name. of the cigarette? Why is the packet not admissible for that purpose?
MR NICHOLAS: Your Honour, by itself it does not prove association.
BRENNAN J: That is not the question that was put to you,is it?
The question is why was not that packet admissible
to prove that "Winfield" is the name of a cigarette?
MR NICHOLAS: I think I would have to accept that it was - just left there,Your Honour, I would have to accept
that.
TOOHEY J: Well, maybe another question as to the use that was ultimately made of it, but it seems to me that
perhaps,whether or not you concede that
Mr Burgess's evidence was admissible to establish
that "Winfield" was the brand name. of the cigarette
packet, it is admissible for that purpose.
MR NICHOLAS: If it was limited to that purpose and went no further than that, Your Honour, that was the bare
fact that it was going to establish, then I haveto make that concession, I think.
(Continued on page 43)
C2T29/l/CM 42 12/9/89 United(2)
BRENNAN J: Then your problem may lie in the direction that was given to the jury about the use which could
be made of it.
MR NICHOLAS: There is that, but more importantly, Your Honour, we would say it ought to have been excluded on the
basis of the prejudice that would flow from having
it before the jury.
McHUGH J: What is the prejudice? MR NICHOLAS: Well, would Your Honours be good enough to look at the exhibits.
GAUDRON J: Mr Nicholas, may I ask, did you ask the trial judge to exercise any discretion to exclude the evidence?
MR NICHOLAS: Yes, we did, Your Honour, I will take Your Honours to it - - -
GAUDRON J: In those terms?
MR NICHOLAS: We objected to this material going on as being
highly prejudicial. Your Honours will see that the warning is given about the hazardous nature of smoking, the combination of colours, substantially
different, we would say, from any representation
that there was to be seen in the programme. The
poster, or the photograph of the poster has, for
example, I think, the warning again; the get-up which emphasizes the connection with the
cigarettes, and a colour combination which was
not represented in the segment, and - - -
McHUGH J: What do you mean by that? Red and white was certainly represented.
MR NICHOLAS: Yes, Your Honour, but what the jury have in front of them, in their hand, is somebody else's
advertisements for cigarettes, that is what
those things arP-, and they are at the end of the day -
(Continued on page 44)
C2T30/l/FK 43 12/9/89 United(2)
GAUDRON J: The packet is something else as well. MR NICHOLAS: Yes, it is, but, amongst other things, it 1s certainly conveying a message in its own terms
concerning the cigarettes, its get-up, and we
would say, Your Honour, it is a separate publication
of matter concerning the cigarettes. So the jury have in their hand this material which puts beyond
doubt, as it were, the connection between the name,
the colours, and so on, and cigarettes, and theyare then being asked, in truth, to draw a conclusion
that that material constitutes an advertisement for
cigarettes by reference - - -
TOOHEY J:
What do you mean by "that"? What does the "that" refer to, the cigaretter or the pac~et?
MR NICHOLAS: I am sorry, Your Honour, the telecast. They are asked to draw a conclusion that the segment
constitutes an advertisement for cigarettes byreference to the matter which is plainly somebody
else's advertisement for cigarettes and it becom~s
a point of reference that they have to the exclusion
of anything else which we say must influence, if not,
indeed, as a matter of reality even dictate, the choiceor conclusion that they would make and that is,
we would put to Your Honour, the enormous danger
which would lie in them having in the jury roomthis particular combination of colours wrapped
around the cigarettes to the exclusion of any other
usages of, for example, red and white.Take, if you would, the programme itself. It showed quite clearly no particular combination
of red and white. There are a great many colours, as Your Honour saw, throughout that spectacular show.
(Continued on page 45)
C2T31/l/HS 44 12/9/89 United(2)
McHUGH J: But red and white was the dominant colour theme. MR NICHOLAS: But, Your Honours, there was no McHUGH J: Even in Mr Bertram going up on the stage in white trousers and a red jumper on.
MR NICHOLAS: Indeed, he did, Your Honour. He also had, as Your Honour would have noticed, the NEC logo on his
pocket and from time to time in red and white,
was flashed up on the screen, NEC, and its
advertisement, together with the Winfield Cup and
the football match. What I am endeavouring to say to Your Honour is that it could be by no means
said that the use of red and white in this particular
broadcast had any particular significance at all.
There were a host of everyday colours on that show,
none of which was in any particular form or get-up
and so the jury then have material before them which
puts those colours in a particular combination and -
McHUGH J: But why was not the evidence admissible for the purpose of proving that there were people in the·
community who would have bought those packets, would
have seen those posters and then, watching the
television spectacular, would associate the
"Spectacular" with the promotion of Winfield
cigarettes.
MR NICHOLAS: Your Honour, the difficulty about that is that a number of steps are involved, with respect, and
that is where what we call the CHAMBERLAIN direction
is required to be given. It would be one thing for
them to have been invited to find established beyond
reasonable doubt that there was an association or
identification between Winfield and these colours
and cigarettes so that they could then move on to
conclude that the television viewer at that time
would have perceived the "Spectacular" as an
advertisement promoting cigarettes and that would
be established, too, beyond reasonable doubt and
so there are several legs in it, with respect, Your Honour, and that was - well, it comes back
to our concern about the way the matter was handled
at the trial; but what the danger of putting thismaterial in this form in front of the jury leads to
is this: that they are being invited to substitute
the packet and the poster and draw a conclusion that
they, in effect, constitute advertisements for
cigarettes - v2ry easy to do, one might think -
substitute that material and pronounce judgment
upon that rather than pronounce judgment upon the
content of the segment.
BRENNAN J: Mr Nicholas, does it do any violence to your
argument to put it this way: that, in your submission,
C2T32/1/SH 45 12/9/89 United(2) an advertisement within the meaning of the subsection
is an advertisement only if a member of the community
looking at it and looking at nothing besides, would
construe it as a promotion for cigarettes and, incoming to that conclusion, it is inadmissible to
have regard either to the particular knowledge that
a member of the community may acquire by reference
to other promotions of the same product.
MR NICHOLAS: Your Honour, we would not put it quite like that. Assume for the moment that it had been established in some other way that Winfield was the name of a
packet of cigarettes, getting away from the packet
and the poster, if we might.
BRENNAN J: Winfield was the name of - - -
MR NICHOLAS: The name of the cigarette. BRENNAN J: - - - the cigarette, yes.
MR NICHOLAS: That is the fact. It will then be a matter for the jury, unaided by anything else, to decide whether
or not that association was so established that the
juror could conclude beyond reasonable doubt that the
viewer on the day would have made the connection to
enable him to derive a promotional message from thesegment.
(Continued on page 47)
C2T32/2/SH 46 12/9/89 United(2)
TOOHEY J: It is not the connection, is it? The connection can be made readily enough, perhaps, by reason of
the evidence of Mr Burgess and the packet and the
poster. The question still remains whether what was shown that day was an advertisement for cigarettes.
MR NICHOLAS: Yes, that is the ultimate question, Your Honour.
TOOHEY J: The jury might conclude, "Yes, it was a Winfield advertisement. Winfield was clearly sponsoring the
match, but we do not think it went beyond that. It
was just a Winfield-sponsored occasion. We don't regard that as an advertisement for Winfield products",
and if the jury had been directed along lines that
permitted them to come to that conclusion you would
have had no complaint, I imagine.
MR NICHOLAS: Subject to the appropriate direction, Your Honour. It would have to be made very clear to them, we would
say, that they would need to be satisfied that it had
been proved by the prosecution beyond reasonable
doubt that there was such an association.
TOOHEY J: Now, what do you mean by "such an association"? MR NICHOLAS: That is to say between the name "Winfield" and cigarettes.
TOOHEY J: But I thought that is really foreclosed by your concession that the evidence of Mr Burgess was
admissible and indeed the packet was admissible to
prove that Winfield was the brand name of a cigarette.
There is another and quite separate area of inquiry,
is not there, and it seems to be to be the ultimate
inquiry, whether what was shown that day was an advertisement for cigarettes, which is not necessarily
answered by saying, "Winfield is the brand name of
the cigarette", because it may be that what was
telecast was such that, in the minds of the iury,
it was not promoting Winfield products.
MR NICHOLAS: Yes. TOOHEY J: It seems to me the two questions have become rather blurred as if, having made the connection between
brand aame and cigarette, it follows automatically,
which I would not have thought was the case.
MR NICHOLAS: No. Your Honour, as we see the steps we have
made a concession. The concession goes to the availability of establishing that Winfield is a name of cigarettes. The next step must be, with respect, for the jury to be satisfied - assuming appropriate
direction - that the jury would be satisfied that
this relationship was so well established that they
could then go on to say that the content of this
C2T33/l/HS 47 12/9/89 United(2) segment amounted to an advertisement for that
product, and hence - - -
DAWSON J: And the prosecution set out to prove that second stage by saying, "And we say that the connection
may be seen by reason of the fact that the cigarette
packet is in red and white which so closelyresembles the colours that were shown in the 'Spectacula:
as to prove the point". Now, you say it does not prove it, but they were entitled to put the
cigarette packet forward for that purpose.
MR NICHOLAS: Your Honour, we would say that they have a problem about that because even if they can prove the
connection between Winfield and cigarettes they then
must go on to establish that that association is so
well known that -
DAWSON J:
Perhaps, but in the course of the proof of their case they are entitled to put the cigarette packet in as part of proof for that purpose.
MR NICHOLAS: Subject to the argument about prejudice, Your Honour.
DAWSON J: Yes.
(Continued on page 49)
C2T33/2/HS 48 12/9/89 United(2)
MR NICHOLAS: Yes, I have ind_icated our concession ajout that, I think,Your Honour.
McHUGH J: Surely the prosecution was entitled to prove the
get-up of "Winfield" cigarettes. Supposing
"Winfield" always put a swastika on their
cigarettes and there was a swastika fanned in
the "Spectacular". It would be as plain as day,
would it not, that there is a connection between
the two? You would be entitled to prove the
e;et-up of the "Winfield" cigarettes.
MR NICHOLAS: But Your Honour, it still does not go, we would say, to proving that that get-up was so well
known that it was associated with cigarettes. The jury would have - - -
McHUGH J: But why does it have to be well known? It can be
an advertisement to one person. It is sufficient if it was known to some.
MR NICHOLAS: Your Honour, there was no evidence, as one often
sees in a true inuendo case where if somebody comes in and says, "I saw it and 1 made these connections 1 ' so the jury drawing on its own experience is asked to conclude that the get-up the name and so on, is so well known that the connection can be made, therefore enabling the ultimate question, namely
whether or not it is an advertisement forcigarettes, to be answered.
McHUGH J: But it cannot depend on a lottery of what the
jury know about it. can it, t.his sort of case? There
might be a jury of smokers or a jury of non-smokers
who know nothing about cigarettes. I could not tell you what make-up of brands were or what their
colours were or anything like that. You get acquitted if you are lucky enough to draw 12
jurors who are non-smokers and know nothing about
it, but if you got smokers on the jury you get
convicted. (Continued on page 50)
C2T34/l/CM 49 12/9/89 United(2)
MR NICHOLAS:
But, Your Honour, with respect, the jury will have to be satisfied that the Crown has
oroved, or has put in material which enables them to draw the necessary inference of the association. BRENNAN J: What is this association of which you are
speaking?
MR NICHOLAS: The connection or identification between "Winfield" and cigarettes.
BRENNAN J: In other words, that "Winfields" are a
brand of cigarettes. Is that what you are
saying?
MR NICHOLAS: That "Winfield" is the product name for cigarettes.
BRENNAN J: Cigarettes?
MR NICHOLAS: Yes. BRENNAN J:
So what you are saying is that it is admissible to prove that "Winfields" is a product name of
cigarettes? We have got past that stage, have we not? The problem is now the get-up, the appearance - - - MR NICHOLAS: But, Your Honour, it is one thing to talk
about the bare connection; it is another thing,
with respect, to move on to prove that the ordinary
man in the street would, as a matter of course - it
is passed into his common experience - would make
that connection.
BRENNAN J: That is the proposition really that you have
to come to grips with, is it not, and that is
that an advertisement is an advertisement onlyif the average viewer looking at it by itself
would construe it as a commendation of the product?
MR NICHOLAS: Yes, Your Honour. BRENNAN J: That is a simple proposition. Have you got
anything to say further to develop it?
MR NICHOLAS: With great respect, there is nothing more to say to develop it. It is a - - -
McHUGH J: If you fail on that, you fail?
MR NICHOLAS: I beg Your Honour's pardon?
McHUGH J: If you fail to make good that proposition, your
case for rejecting this evidence must fail, must it not?
C2T35/l/JM so 12/9/89 United(2)
MR NICHOLAS:
The ultimate question is whether or not the segment was a promotion for this product.
That is the ultimate question. It presupposes that there is material in the segment which enables there to be identification with the product, coupled with content that is promoting
or drawing attention to that product.
(Continued on page 52)
C2T35/ 2/ JM 51 12/9/89 United(2)
MR NICHOLAS (continuing): Now, those are straight-out jury questions, but in order to get to that point
the Crown has to prove the substratem, namely
the connection.
BRENNAN J: You are equating this precisely with a true innuendo.
MR NICHOLAS: We would say not, Your Honour. In a true innuendo case the reader is permitted to come along
and say that he knew certain facts and that when he
read the material, by reason of his knowledge of
those facts, he drew a meaning which was nototherwise apparent from the thing. Well, this was
not run, if Your Honour likes, as a true innuendo
case, there was no evidence of that kind.
BRENNAN J: No, I have understood you to say that the jury were in that situation. In other words, the jury
must say to themselves, "Using the knowledge that I have, when I look at this telecast I know that what
the telecast is doing is commending the product of
Winfield cigarettes". No - - -
MR NICHOLAS: That is the question he is being asked to decide, Your Honour.
BRENNAN J: Well, that is your proposition, is it not? That is
the proposition of the question which the jury must
determine.
MR NICHOLAS: But, Your Honour, what we are not saying, Your Honour, I just, with great respect, do not want there to be any misunderstanding, and perhaps I am
missing the point - we are not saying that it
therefore follows that the juro½ once he recognizes -
or once he accepts that the Crown has proved this
widespread association, it does not then follow that
he must conclude that this is an advertisement for
that product. I did not want to be drawn - - -
BRENNAN J: No. You are not saying that he must construe it as a commendation or a promotion of the product.
MR NICHOLAS: Precisely.
BRENNAN J: But, what you do say is that in determining whether
or not it is saying anything about the product, the
juror must rely on nothing outside his own knowledge
at the time he goes into the jury box, or, moreaccurately, the knowledge that he would have at the
time that the telecast took place.
C2T36/l/FK 52 12/9/89 United(2)
MR NICHOLAS: Assuming that he would be aware, and it having been proved, that there was a widespread connection
between the name and the product.
McHUGH J: Well, supposing Rothmans wanted to bring on the
market a new brand of cigarettes, "Goldenlights",
which I think there was a case of that, but it
has not been sold in Australia. Could they, for
weeks at an end, run advertisements on television
saying, "Buy Goldenlights for the joy of your life"?
Would that be no offence because no viewer would know what Goldenlights were?
MR NICHOLAS: Well, Your Honour, if it is not yet within the
realm of the television viewer's experience at the
time he is viewing it, then it would not convey
that message to him.
McHUGH J: It is certainly an advertisement, is it not? Why could not you prove it was advertisement for
cigarettes, even though it was not yet known?
MR NICHOLAS: Your Honour, it would have to be known to the viewer in order for him to get the commercial
message, which is the subject of the prohibition.
It has got to be intelligible to him.
McHUGH J: No, not necessarily. The viewer goes down to the shop the next week and he sees "Goldenlights" he
sees the packet there and he goes and buys it.
MR NICHOLAS: Well then, Your Honour, I suppose it comes to the point of time at which the viewer has the
relevant knowledge. I mean, if it is broadcast to the ignorant, Your Honour, it conveys no message. One might think it would be devoid of any conrrnercial
content or message at all ana t:b.at, '._)erhaps,. is the
sort of thing Mr Justice Gibbs was saying in the
ROTARY OFFSET PRESS cas~where, he was saying,
you look at it and it speaks for itself and you make
a decision about that.
(Continued on page 54)
C2T37/l/DR 53 12/9/89 United(2)
MR NICHOLAS (continuing): But the message must lack its advertising quality if it fails to convey a message,
Your Honour, and that presupposes that their people
in the community who can receive or perceive a
message from it. If it cannot be established by the
Crown that such a message would be conveyed then,
by reason of the ignorance of the community or
anything else, then it cannot be an advertisement, we
would say.
BRENNAN J: Well, Mr Nicholas, I think we are seized of that point. Is there anything further you wish to
say in development of it?
MR NICHOLAS: Well, Your Honours, we wanted to take you to
the prejudice point. We have put to Your Honours that assume it was relevant to establish this material,
then this was not the appropriate vehicle in a case
such as this to enable proof of the fact that Winfield
was a name of cigarettes and that these colours were
associated with it for the reasons, Your Honour, that
we touched on a little earlier on, namely, what in
truth the danger is, is that the jurors would be tempted
to found their conclusion on the publications, the
conduct of others, and that their mind would be
necessarily directed to construe the segment and its
contents in the light of the objects that are with them
in the jury room.
BRENNAN J: Well, what that is really saying is that if it was used for the purpose which you say it could not be
used for then it would prejudicial to let it in and
allow them to use it for that purpose. If it was permissible to let it in and let them use it for that
purpose then, of course, the point disappears.
MR NICHOLAS: But, Your Honour, the question has to be asked, with respect, as to whether or not it is -
such probative value that it has -
BRENNAN J: That depends what the issue is that has to be
proved.
MR HICHOLAS: Well, ultimately, the issue that has to be proved is whether initially it goes in on the basis of
the association.
BRENNAN J: Well, that is what we have just been through.
(Continued on page 55)
C2T38/l/JH 5 4 12/9/89 United(2)
MR NICHOLAS: Yes, but at the end of the day, what has to be proved is whether the particular broadcast
constituted an advertisement for cigarettes -
BRENNAN J: Quite. MR NICHOLAS: - - - and that decision ought not to be influenced. we would say, by the sort of material that this
evidence consisted of.
McHUGH J: But that might have been the strongest evidence. !he strongest evidence usually is the most preiudicial
1n one sense.
MR NICHOLAS: Well, Your Honour, a trial judge has a
discretion about it. He has got to ask himself, "What does this material tend to prove".
DAWSON J: It is very difficult to see a cigarette packet
inflaming a jury's mind, though, is it not?
MR NICHOLAS: Your Honour, in a situation where smoking, or non-smoking, is a pretty lively issue in the com~unity -
that is recognized - they have got in their hand a
packet of cigarettes on which is written "smoking is
a health hazard"; they have got the material in the
poster before them which is ramming home to them
the association between cigarettes, health, Winfield
cigarettes, the lot; they are looking at it there and
then they a re .asked to f i na 11 y pronounce upon the
matter which went to air. What we are saying, Your Honour, with respect, is that having that material,
to the exclusion of anything else, in front of them
would be highly likely to have influenced their
conclusion as to the quality of the message in the
broadcast.
It ought not to be forgotten, with great
respect, that the ordinary television viewer
watching this programme at home, he would have seen
it once as it passed across the screen. It is
unlikely that he would have had in front of him at the time this sort of material to refer to in the course of deciding whether or not he was being shown
an advertisement on this occasion.
(Continued on page 56)
C2T39/l/HS 5 5 12/9/89 United(2) McHUGH J: Why do you say that? There would have probably
been plenty of "Norms" sitting there in front of their televisions sets smoking their Winfield cigarettes.
MR NICHOLAS: There might have been, Your Honour, but it creates an artificial and, we say, a prejudicial situation in
which the quality and content of this particular
broadcast fell for assessment.
TOOHEY J: Are you saying, Mr Nicholas, that any evidence that
might go to show that the colours that were depicted
on this television advertisement or, the standard
colours of Winfield, was inadmissible?
MR.NICHOLAS: We would say that you can prove the association, Your Honour, but you are going to need - it depends
on how you set about proving it. One might expect proof of - I was looking at the poster, Your Honour - some proof as to the range of publication, I suppose,
of the poster.
TOOHEY J: But, surely, the most obvious way of proving it would
be through the product itself. If a product is sold
under a particular get-up and the jury is satisfied
that there were characteristics of this broadcast
that suggested that get-up, and that is a matter in
which they needed to be, perhaps, directed with
some care, why should the evidence be withheld from
them?
MR NICHOLAS:
Your Honour, it depends how far the - we have conceded that Mr Burgess can come along and say,
"We have marketed Winfield as" - "There is marketed
Winfield cigarettes".
(Continued on page 57)
C2T4O/1/SH 56 12/9/89 United ( 2)
MR NICHOLAS (continuing): So that would carry with it the evidence that there are on sale Winfield
cigarettes and therefore available to the public.
But we are really say, Your Honour, that is one thing; then from that it must be established
beyond reasonable doubt that there is necessary
depth of association in the public mind.
GAUDRON J:
Why do you say that, Vr Nic:h:)las? I mean, it may be the case, and it is established, in
stu:lies related to linguistics and language, that some words become part of the cotmnon language? If I were to say to you "Get a Flick man", for example, I should imagine
that practically everyone would receive the same
message by the words, "Get a Flick man". It
may be that Winfield was in that same position;
whether it was or was not is not a matter of anylegal moment, but surely the jury might well have said, "Well, everyone knows
what Winfield is.".MR NICHOLAS: Then if they came to that conclusion they would be satisfied beyond reasonable doubt of
that association. I suppose another example is "Hoover", a word which no doubt has passed
into our language and most people would associate
that with the vacuum cleaner.
TOOHEY J:
You keep wanting to get inside the mind of the viewer. Why do you need to do that? Is it not a question whether this was an
advertisement for cigareetes? It was a
telecast in which Winfield's name was involved•I:bw the jury might think, well, that is really not enough to make it an advertisement for
cigarettes. But if it is associated with materials such as the colours that were being worn that are associated with Winfield products, then it
is not a very long step to conclude that that
was an advertisement for ciagrettes. (Continued on page 58)
C2T41/l/JM 57 12/9/89 United(2)
TOOHEY J (continuing): The cigarette packet is evidence of the get-up that Winfield uses in its products
in the same way as if there had been a logo depicted -
Winfield's logo had been depicted in the course of this advertisement for this telecast, it could hardly
be said that it was irrelevant because it might take
the matter beyond a mere association of name to an
association of name and product and by that step to
the conclusion that there was an advertisement for
cigarettes.
MR NICHOLAS: Well, Your Honour, it is still necessary for the Crown to establish the depth of that association,
or the widely - that association is widely
accepted in the - - -
McHUGH J: I do not understand that, I have to admit,
Mr Nicholas. I do not see why this depth of association is involved at all ..... inference - - -
MR NICHOLAS: Well, certainly, that is the only way it can
be done, that you have the foundation being the · name and the product and so on, then it is for the jury
to be satisfied that this association is of such a kind
as to enable them to infer that the viewer - because
that is who he is addressing himself to - would have
derived this message.
BRENNAN J: Have you much more to say on this aspect,
Mr Nicholas?
MR NICHOLAS: No, I do not think I will be - I will be about 15 minutes, I would say, Your Honour - 15 to 20
minutes.
BRENNAN J: Will that cover the time that you would expect to deal with your cross-appeal?
MR NICHOLAS: It may not, Your Honour. I would think
probably half an hour would see me out.
BRENNAN J: In that case, we will adjourn now until 2.00 pm. AT 12.51 PM LUNCHEON ADJOURNMENT
C2T42/l/JH 58 12/9/89 United(2) UPON RESUMING AT 2.01 PM:
BRENNAN J: Yes, Mr Nicholas.
MR NICHOLAS: Your Honour, may we take Your Honours to the submissions that we wanted to put on the question
of prejudice. We have set out our notes about that on page 8 of the lengthy document, Your Honour,
a number of the points we have already adverted to
during the morning, thus I do not propose to read
to Your Honours all of the paragraphs which
follow, It may be sufficient, with respect, if I
indicate to the Court that we have set out on those
pages, from 8 and 9 and 10, the additional matters
that we wish to put on the question of prejudice, and
to remind the Court, with respect, of the approach
that it took in dealing with the question of the
test that a judge would be expected to apply in
deciding whether or not to put material before a
jury, and we have referred Your Honours to the
decision of this Court in HOCH V REG and
THOMPSON V REG and the references are there, and
what we do get from them particularly, Your Honour,
with respect, is that given the type of evidence
that this packet and poster constitutes, the jury
may very well have been tempted to act on, as the
expression in those cases were, "prejudice" rather
than "proof", ie. to ask themselves the ultimatequestion by reference to the material that they had
in their hand which contains the matters that are
plain enough to Your Honours and to which some reference
was made during the course of the morning.
And, Your Honours, we go on to say, at the top
of page 9, that our submission is that no warning by
a judge would have been sufficient, in our submission,
to remove the risk of prejudice or misuse and, of course, in this case, no warning was given at all.
Your Honour Justice Gaudron raised with me the question
whether or not the prejudice point was, in effect, taken at the trial; it was and I can take Your Honours
to the occasion on which it was and the way in which it was
dealt with. Your Honours will see at the appeal book atpage 7, where there was debate and submissions
about this evidence going in before His Honour finally
ruled that it should. On page 7 at lines 25 to 30 the objection was taken to the Crown indicating that
he wished Mr Burgess to identify the cigarette
packets.
C2T43/l/FK 59 12/9/89 United(2) MR NICHOLAS (continuing): For present purposes, Your Honour,
from line 25 - perhaps I can bring you down to
line 29, half-way through the line on page 29: and can only be apart from irrelevant, highly
prejudicial to the jury to have this material
of cigarette packets in their hand and in
the jury room when they retire. This is not
a case of the merits of smoking.
His Honour recognized the issue that we were raising on page 8 at the top, line 4. He recognized the
submission that it would be highly prejudicial -
"evidence of symbolizm sought to be called in aid
to interpret what was seen on the screen"and he
then overruled the objection and the point was
taken up again in relation to the Crown foreshadowing
the calling of evidence to identify the forms of
advertising as he did at the foot of page 8 and the
objection was taken on page 9, line 5, where we
submitted that it would be prejudicial that way ..
As we have indicated at the foot of our notes on page 9, the Court of Criminal Appeal of course
recognized the prejudicial effect of the nature and
it seems plain from what Mr Justice Lee had to say,
the reference that we have given the Court at
the foot of page 9, at page 73, and certainly
Mr Justice Hunt, at page 74, recognized the
prejudicial quality of this evidence. Your Honours, we have gone on - - -
McHUGH J: When the telecast was being ~tayed earlier this
morning, I could not help but ~otice that in the
"Spectacular" was the Tchaikowsky theme, the
"Winfield" theme song. Was that relied on?
MR NICHOLAS: It was attempted to be relied upon, Your Honour. Indeed, if you come to page 15, line 5, Your Honour
sees the Crown says: As heard on the telecast a particular piece of music which we had particularised as being a particular of the matters upon which the jury
would draw the necessary associations. That
was a piece from Tchaikowshy's Fifth.(Continued on page 61)
C2T44 / 1/CM 60 12/9/89 United(2) MR NICHOLAS (continuing): The Crown had intended to lead evidence
of that particular piece of music having been associated with the name "Winfield" in the past, but prior to 1982, so therefore
the evidence was excludeed in your Honour's
ruling which I do not seek to canvass that,
but nevertheless, we submit there could well
be members of the jury whom independent of
any evidence they have heard in this case,
will draw an association -
then he raised matters as to how that coulde be
dealt with:
HIS HONOUR -
at line 25:
What the task of the jury is that they have.
to decide on the evidence they hear. They do not speculate on their own recollections.
After all, the fact is this, is it not, if
any of the music, and after all Tchaikowsky's
Fifth Symphony only occupied a small part of
that exercise, most of it seemed to come from some modern film, but the fact is that if any
of that music had been played in circumstances
where it was directly associated with advertising
cigarettes over the last two years whereby the
public were exposed to it, it could have been
proved.
He said:
It has not been proved -
Does that dealt with it?
McHUGH J: Yes, it was not a relevant element. MR NICHOLAS: No. Well, what he is saying there, Your Honour,
with respect, that it had not been proved and so the question had not come up.
McHUGH J: Yes. MR NICHOLAS: I rather infer from the way His Honour expressed it that had the Crown sought to prove it then he may
very well have let it in and, indeed, he touched on
it in the course of his summing up to the jury anddrew attention to it, but asked them not to - I will
see if I can pick up the page, Your Honour. There was a page where he made some reference to them, yes;
but, Your Honour, it was not treated as a piece of the
evidence, if that is sufficient for you.
C2T45/1 /SH 6 1 12/9/89 United (2) t,,JR NICHOLAS (continuing): Yes, Your Honour, particularly
page 34, about line 8,he begins:
At the end we got into the jingoism you
might think with "I Still Call Australia Home"and "Waltzing Matilda", the totality of which
you might regard as all good razzamatazz betweenone game and another but I repeat, do not
speculate about other things and let me take
a simple example - Tchaikovsky's Fifth
Symphony, someone might say oh gee, I wonder
if that is the tune they used to play years
ago for Winfield cigarettes. You are dealing
with something in September 1984 and there is
no evidence about Tchaikovsky's Fifth Symphony
in respect of the time we are talking about.
That is merely an exam?le.
Well then, Your Honours, ?age 10 of our notes
we continued with our sub~~s3ions on the question
of prejudice and at the top of page 10 we putthis, with respect: that with the evidence of
this kind in the jury room, there is a real
likelihood that it would have proceeded on the
understanding they were required to answer, in effect,
a question different from the necessary one, namely,
"Does the telecast convey a message which promotes a
product which is the same as the product the subject
of the exhibited packet and poster?" If "yes",is the telecast similarly an advertisement for those
cigarettes? Reference to the exhibits in the jury
room must influence or direct the jury's approach,
or cause them to misunderstand what was truly
required of them,. meaning, we would put to Your
Honour, the answer to the ultimate question.
Then, fit paragraph 6, we also put this: that the effect of
admitting the evidence was likely to confuse the jury as to the proper approach to be taken in deciding the
prejudicial to the defendant. This is so, because
question, or was likely to influence them in a way
the consequence of allowing the oral evidence, the packets with their colours and symbols, et cetera, permits speculation as to purpose. There must have
been a real possibility that the jury would conclude that the Rothmans' purpose was to promote its cigarettes through use of the colours and images and symbols conveyed by the packets and posters and, similarly, the purpose of its Winfield Spectacular,
involving use of like colours and symbols, was topromote its cigarettes.
C2T46/l/DR 62 12/9/89 United(2)
MR NICHOLAS (continuing): Thus, we would suggest that it
did lead on one view to the inevitable conclusion,
a conclusion that was inevitable, that the
SDectacular was indeed an advertisement for
cigarettes, rather than looking at the matter
for itself.
BRENNAN J:
Mr Nicholas, could I just ask you with regard to the questions after the word "namely" in
your paragraph 4 on page 10, are you asserting that that is the question which the jury were required to answer, or a question different from the necessary question? MR NICHOLAS: It is a different question, Your Honour.
BRENNAN J: It is a different question?
MR NICHOLAS: Yes. What we have endeavoured to nut there
is the different question. We say there is a question different from the necessary question.
Perhaps there should have been a common - I see.
the confusion, Your Honour.
BRENNAN J: Perhaps you could tell me what is the
difference between the question that is there
and the necessary question.
MR NICHOLAS: What we are suggesting - - - BRENNAN J: Id~ not wish you to go back over it again. MR NICHOLAS: No, I realize that, Your Honour. BRENNAN J: I just want you to identify what is the difference.
MR NICHOLAS: What we are suggesting is that they are tempted to ask themselves, "Is the telecast
an advertisement for cigarettes?" by referring
back to the exhibit to lead them to the
a product and is that product the same as the answer about that. "Is the telecast promoting one that we have in our hands?"
BRENNAN J: Let me ask you this question? If the jury
were asked the question, which you say is the
different question, and had answered it
affirmatively, that is against your interests,
could it properly have come to any other verdict
but guilty, and if so, why?
MR NICHOLAS: Your Honour, I suppose my answer to the
question is really the process by which the jury
get to answer the ultimate question.BRENNAN J: I am assuming that they answer the question which you say is the different question. That was
C2T57/l/JM 63 12/9/89 United(2) the question that was posed to them; they
answered that question. If they did answer it,
would they have had any option but to convict?
MR NICHOLAS: If they concluded that they were
satisfied beyond reasonable doubt that the
telecast promoted a product which was cigarettes,
then they would find the offence proved.
BRENNAN J: Is that not exactly what that question is?
MR NICHOLAS: No, Your Honour, because what we say here is that their attention is being focused on
the exhibits that they have in their hand. They are addressing themselves to the quality and
nature of them rather than, as they should,
to the quality and nature of the material thatwas broadcast. That is what we are seeking to
say there, Your Honour.
(Continued on page 65)
C2T47/l/JM 64 12/9/89 United(2)
MR NICHOLAS (continuing): Your Honour, we have taken you to paragraph 6 and in relation, finally, to this
question of preiudice, Your Honours, we would say
this - I will not repeat all of the matters that we
went into this morning, but can I just add this
simply, that when one is looking at the question of
colours in this case our submission is that there is
nothing unusual or significant about the colours red
and white, particularly having regard to the way in
which they appeared in the segment. They were given, of course, crucial significance in the exhibits
to demonstrate a particular combination and use, but
when one reflects upon the content of the segment
here we would submit, with respect, that the colours
red and white would be of minimal probative valueat all because, as Your Honours have seen, that
plainly enough, for example, they are associated
directly with NEC who were the promoters of the grand
final; there were names on the screen, you had the
reference to Mr Bertram and Miss Lee, otheradvertisements for NEC, it was called "the NEC
8randfinal", you had other side hoardings showing· 'AGC" on the boundary, that was in red and white, there was a shot of Cocoa-Cola, and JVC, those initials and names were in red and white, and the carriers coming in with the balloons, and so on
had red and white shirts - they had the name 11 Gasbo 11 , and so forth, in those green covers, for example, which I think is a gas organization on their back. What I am endeavouring to put to Your Honours,
with respect, is that in the context of this case
it could not be said that red and white had anv
probative significance whatsoever. Your Honours, those are the submissions that we would make on this
question of prejudice to the effect that this material
should not have been before the jury. Your Honours, the question perhaps now comes up as to the matter
raised in the cross appeal and, of course, whether
the Court will entertain that. The cross appeal seeks to raise the question of the capacity of the evidence to lead to the conclusion on the necessary standard
as to whether this broadcast was an advertisement
for cigarettes.
It was a matter raised directly before the trial
judge in submission and rejected by him. It was
raised also by the Court of Appeal, so it was before
the Court of Appeal. We had difficulty in deciding from a procedural point of view whether the issue
should be raised by way of cross appeal, or not.
When one reads the iudgment of the Court of Appeal,
His Honour the Chief Justice expressly states that
for present purposes the court will proceed on the
basis that it is an advertisement for cigarettes,
and then he goes on to deal with it on that basis.
C2T48/l/HS 65 12/9/89 United(2) Although the question was argued before the
Courc of Appeal, the question of capacity, they did not deal with it at all. At page 63, line 75,
His Honour the Chief Justice made the statement:
The segment can, for present
purposes, be accepted as being
an advertisement for Winfield.
BRENNAN J: He does not say "for cigarettes"; he says "for Winfield".
MR NICHOLAS: No, he does not. We just have some difficulty at our end about that, with respect, Your Honours, as to
how we can preserve our position because we did raise
with the Court of Appeal, and they took the approach,that the appeal could be disposed of on the basis
that this material was brought in as material to
aid the jury in interpreting the content of the segment, and they dealt with it on that basis. They did not advert to other matters except the
prejudice point en passant. That is where it comes up and we were concerned to protect our
position and it seemed to us that perhaps the only
way we could formally do so would be pursuant to
a cross appeal.
(Continued on page 67)
•
C2T48/2/HS 66 12/9/89 United(2)
MR NICHOLAS (continuing): But we certainly want to put to the Court; if we are permitted to do so, that, as
a matter of law, the evidence would not enable
a conclusion to be drawn beyond reasonable doubt
that this telecast constitutes an advertisement
for cigarettes and that submission makes it necessary
to go to the terms of the section, if I may take
the Court to them. It is conveniently set out,
Your Honours, on page 62 of the appeal book and
the prohibition in subsectiori SA) is clear enough.
That, of course, is subject to subsection(lO) which
is a definition provision and it, in terms, excludes
from subsectioriSA) matter which may be regarded
as "of an advertising character" which is an
"incidental accompaniment of the broadcasting
or televising of other matter".
Now, I should tell the Court that, at the
trial, it was admitted that the broadcast was not
"accidental". The argument focur ed on whether or not it could be regarded as "incidental" to
the broadcasting of other matter and, of course,·
if it is so found to be an incidental accompaniment,
assuming, of course, against us, that it is found
to be matter of an advertising character, then
it is outside subsectiotXSA) and, as to that, we
make the submission that the evidence of the
broadcast, namely the tapes that were before the
Court and shown to it, th~t they consisted of matter leadin8
up to the actual "Spectacular" and after it, to
demonstrate that the "Spectacular" was broadcast
as part of the coverage of the football and other
matter during the entire day. That is what the
evidence of the tapes established and I think the
coverage began about 10 o'clock in the morningand it concluded at about 6 o'clock in the evening,
at the end of the grand final event.
Plainly enough, there were many advertisements
of the conventional kind and there were many matters
other than the coverage of the match itself. Your Honours will have seen on the fast play, for
example, interviews with players and scenes of
individuals and so on and there was a great deal
of that throughout the day, part and parcel of
the total coverage which, we say, falls for
consideration in determining the answers to
subsections (SA) and (10).
So, not only was it incidental to the coverage
of the football match but we would say it was quite
plainly incidental to the promotion of the Winfield
Cup 1984, a term descriptive o.f the particular football match. That was its name; that was its
description and that was the description given
to the grand final football match for 1984. Thus
C2T49 /1 / SH 67 12/9/89 United(2) if there was anything of an advertising character
in the content of that "Spectacular", we would put
to Your Honours that it would be quite unreasonableto treat it as anything other than an incidental
accompaniment to the coverage of the football match
known as the Win f i e 1 d Cup , 1 9 8 4 , w h i ch in t urn was part and parcel of the coverage of many other events
during the course of that day.
(Continued on page 69)
C2T49/2/SH 68 12/9/89 United(2)
MR NICHOLAS (continuing): Thus, we submit, with great respect,
that the final question is whether the evidence
enables the conclusion that this segment constitutes
beyond reasonable doubt an advertisement for
cigarettes. That is to say, i.1.ecessarily, that this
segment has a clear meaning, the effect of which is
the promotion of the product cigarettes.
McHUGH J: 'what about the last link of subsection (10)? MR NICHOLAS: The payment question, Your Honour? McHUGH J: Yes. MR NICHOLAS: Your Honour, it was also admitted that the licensee did not receive payment or other valuable
consideration for broadcasting that matter. That was asubject of admission. Just pausing there, with
respect, Your Honour, when you come to consider the
terms of that ROTHMANS' case before the Federal Court,
it will be remembered that there was a great deal
of evidence which had been admitted before the
Broadcasting Tribunal, which included, for example,
the agreements between Rothma.ns in relation to the 1982 grand final which Channel 7 broadcast, which was the subject of consideration in that case,
there was evidence of the agreement between Rothmans
and the television station and the rugby league as to
how it all ought to be done, and so on, and that wasa matter which the court considered that left it open
to the Broadcasting Tribunal to make the conclusion
that it did.
Similarly with the Benson and Hedges advertisements.
When Your Honours go back to the case you will see
that there was a considerable amount of evidence
reflecting the agreement, the relationship, and so
on between the manufacturer and the material that
became the subject of the broadcast and we say,
on the facts of those cases, there is a considerable
distance between this one and those.
McHUGH J: And what do you say the other matter was? The other matter, taking the expression used in subsection QQ)
MR NICHOLAS: We say that the other matter was the coverage of
the football match, the matter which preceded the
spectacular which, I can tell Your Honour, consisted
of the coverage of the earlier grade matches. It also included, of course, the other conventional advertisements which came in - - - McHUGH J: 'why could not the jury take the view that this was not an incidental accompaniment of that match, but was an advertisement in itself?
C2T50/l/FK 69 12/9/89 United(2)
MR NICHOLAS:
Well, Your Honour, in order to do that they would have to come to a conclusion that there was a clear
message promoting, in this case, cigarettes.
Now, the Act enables us to have this much against usthat it was open to the jury to conclude that it was matter of an advertising character; that the jury could sit up there and say, "Well, it has some promotional message about it all". McHUGH J: By the way, did the Crown have to negative these
matters in subsection(l0P.MR NICHOLAS: Yes. That was a matter, Your Honour, that had been the subject of argument before the trial, and the
effect of that was to do that. And we say that is looking at it in its more general context, but we
would still be able to put to the Court that if one
just took the spectacular itself, the reference to
it is incidental to the promotion of the
colours, if one gets that far, or to the reference use of
of the word "Winfield" in the context of the
grand final football match, the Winfield Cup 19S4
Grand Final Football Match. It is not to be forgotten,
with great respect, that thrown up on the screen were
the names, again in red and white, "NEC", "Grand Final"
and so on, and that would be matter, or course, before
the viewer, and part of the material that he would be
taking into account.
Thus we put to the Court that, bearing in mind
the viewer is viewing it on this one occasion, it is
a matter of impression that he would have, the
conclusion that he would reach, we put to the Court
that, on the evidence as it stood, the defendant could
not lawfully be convicted of broadcasting anadvertisement for cigarettes, and it lacked the capacity
and therefore should have been taken away from the jury
on that ground, and those are the - - -
(Continued on page 71)
C2T50/2/FK 70 12/9/89 United(2)
BRENNAN J:
Mr Nicholas, is it right to say that if the character of the Spectacular as a whole is
advertising, then this argument does not run, but if the character of the Spectacular as a whole is non-advertising, then your argument is that the reference to "Winfield" within it is merely incidental? MR NICHOLAS: Yes, certainly that, Your Honour. BRENNAN J: Is that the proposition?
MR NICHOLAS: Yes, but, Your Honour, we can do a bit better than that, with respect, we would sa~ because
we would be able to narrow the focus, as it were,
to have - there may be discernible material within
the Spectacular. If one said, "We ignore therest of the matter that was going on relating to
other football matters and so on. We just concentrate on the content of the Spectacular
and look within that", then we would put to any matter which could be described of an
advertising character within that would be
plainly enough incidental to the overall exercise
or message conveyed by the Spectacular itself,
namely the promotion of the commencement of the
Winfield Cup 1984 football match, because you
know that that is coming, that is the next thing
that is coming. This Spectacular is part and
parcel of the coverage of this activity.
BRENNAN J: It is no more than the big game build-up?
MR NICHOLAS: That is how it was described, Your Honour, and
we are content with that. Your Honour, that is the matter which we sought to raise on the
cross appeal and just as to that, we would
say that the Court, if it saw fit to give us
leave to do so and if indeed it was necessary
for us to have leave to argue this point, we
would say a grant of special leave would be consistent with the basis upon which leave
was granted to my learned friends for this
appeal because at the end of the day, of course,
this entire matter raises a question. It is
raised by the DPP in relation to a decision
of the Court of Criminal Appeal in which a
new trial was ordered and it deals with the
construction of a particular section of a particular
Act and a question directly as to the admissibility
of evidence.
McHUGH J: But is there not a distinction between the two cases? The appeal raises a question of general
importance as to whether, in all cases, evidence
is admissible for the purposes of that section
to identify what the advertisement was, but
C2T51/l/JM 71 12/9/89 United(2) your cross appeal is concerned with a
simple question of fact, or perhaps law,
as to whether or not this particular advertisement
was capable of being within the section.
MR NICHOLAS: Your Honour, we would have taken issue and obviously that is foreclosed to us now because
leave has been granted but nevertheless it
was put that it was not a matter of public
importance, it was concerned with evidence going
to a particular conviction under a particular
section and therefore had a limited-interest.
However, coming back to the matter we are seeking
to agitate, Your Honour, yes, certainly it is
limited to this particular matter. However, it has this about it, with respect, that a conviction
on a wrongful basis amounts to a miscarriage.
In my client's case, for example - and to any broadcaster - it can lead to, under the provisions of the Act, adverse conclusions about the fitness of the licensee to retain its licence and so on. There are a series of questions which deal with. the consequences of matters such as this and
would bear directly on fitness and propriety
and matters of that sort.
(Continued on page 73)
C2T51/2/JM 72 12/9/89 United(2) MR NICHOLAS (continuing): So, we would put to Your Honours
that apart from the miscarriage point which we would
say in the circumstances is worthy enough, and I am
mindful of the views expressed by this Court on
LIBERATO and matters of that kind, nevertheless,
we would say that it does have a wider significance
which would warrant, in this case, consideration ofthe matter raised in the context of dealing with
this overall appeal.
Your Honours, the only other matters that we
seek to have dealt with is what we have sought to
raise under our notice of contention. What we have sought to do there, Your Honour, is to - we have set
it under the notes which are headed "Respondent's
Heads of Argument" and it appears on the second page
of that document. What we are seeking to say in it,
in effect, is this, with respect, that His Honour
failed to give the jury sufficient direction as to
the use and application of the material that they
had before them in this evidence.
What we should do is to take the Court to the
way in which His Honour did direct the jury as to
how they might use this evidence. If Your Honourswould go firstly to page 33. At the top of page 33,
His Honour says this - he has referred partly to
the material in the exhibits:
I have referred to the fact that the advertisement
need not specifically refer to cigarettes, that
you may come to the conclusion based on thecircumstantial evidence -
and by that he was referring to these exhibits and
Mr Burgess's evidence -
that it did amount to an advertisement; and I
have just reminded you by that direction of law
as to the way in which you must approach how conclusions of fact are drawn from circumstantial evidence. At page 34, Your Honours, he dealt with the reference to the music in the segment and, at page 36,
appears the way in which he asked the jury to deal
with it. He begins at line 4 that leads into it this way: the three exhibits -
and he refers to them -
a tape of the whole coverage, two is the red pack of Winfield cigarettes and three is the
photograph of the advertisement hoarding,
C2T52/l/DR 73 12/9/89 United(2) described by Mr Burgess as being twenty by ten
and sited at various places around Sydney.
Apart from that the only evidence was that of
Mr Burgess. Let me just remind you of what he
did say. He is, and has been since 1978, employed by Rothmans of Pall Mall and during
the two years prior to 23 September 1984, you
remember that period as the period I decided as
a matter of law was the limit for going back
to the incidental matters associated, not
incidental matters, these matters of circumstantia_
evidence which might, according to your finding,
to some extent have influenced the mind of the
average television viewer watching the grand
final.
(Continued on page 75)
C2T52/2/DR 74 12/9/89 United(2)
MR NICHOLAS (continuing)!
That is a question of fact for you - whether the
fact there were these hoardings and the other
matters that are referred to by counsel for the
Crown would, I should think, condition to
some extent the mind of the average TV viewer so
as to more readily have created an impact on
his mind by such advertisement, such a display
which is the subject of this case.
Now pausing there, with respect,Your Honour, he appears
to be saying that it is enough if there is the
possibility of association or a possibility that the
viewer might have been influenced by an awareness of
these matters, and thus seems to leave it open. We would suggest that this material might be used as an aid to interpretation. He goes on on page 37, Your Honours, at line 10. He has preceded that by further reference to the evidence, the packet and
the poster,and at line 10 His Honour says:
That is the whole of the evidence. You will appreciate more now, I am sure, what I said
at the beginning, that primarily your task
is to make a value judgment on this matter asto what conclusions can properly be drawn from
that segment of television, taking into account
all the surrounding circumstances, most of which
I think I have mentioned to you.
And thus, it would appear clear that His Honour
was leaving it to the jury to call in aid the contents of the exhibits in their process of
identifying and then interpreting any message
conveyed by the segment and that, no doubt, was
the sort of matter that Their Honours in the
Court of Criminal Appeal were considering when
they came to the conclusion that this material
had been put before them and was used by the jury as matter aiding them in the overall interpretation
of that segment.
Your Honours, we would say, with respect, that
His Honour ought to have given them a direction to
the effect of that which we have set out on page 2
of that second set of notes in the paragraph numbered 6(a). And we would say that His Honour was dealing with who was right or wrong as to
whether or not it was a matter of circumstantialevidence. His Honour should have made very clear
to the jury the way in which they could properly
use it and should have directed them in the way
that we have suggested in these notes, namely that
they should be satisfied beyond reasonable doubt
that, by reason of the wide public disseminationof the contents of the packet and the poster, there
C2T53/l/CM 75 12/9/89 United(2) was an association or identification in the mind
of the average television viewer at that time
between the name "Winfield" or the colours red
and white with cigarettes, so that- because that is the
next step - the jury would conclude beyond reasonable doubt that when the average viewer saw this
segment he would perceive it as an advertisement
for cigarettes by reason of that association or
identification and left in the way it was to the
jury, we would submit, with respect, they were
offered the opportunity of turning to this materialas assisting them in the interpretation of the
contents of the segment and ultimately to come to
the conclusion that it constituted an advertisement
for cigarettes and that was wrong.
(Continued on page 77)
C2T53/2/CM 76 12/9/89 United(2)
BRENNAN J: Thank you, Mr Nicholas. Sir Maurice? SIR MAURICE: In relation to the appeal, Your Honours, except on the question of prejudice, there is nothing more
I want to say in reply to my learned friend.
Now, Your Honours, on the question of prejudice,
the matter is clearly the cigarette package and so on.
It is clearly admissible to show that the name,
"Winfield" was connected with cigarettes and once it
is admissible to show that, it is no matter of prejudice
to say that it makes it more likely which is, really,
what my learned friend is saying and, once that is so,
Your Honour, the evidence cannot be excluded and I
do not think one can say any more than that. One has a package; one has a photograph of a poster,
each of which shows that Winfielcs are cigarettes and we submit, Your Honours, that once you show that
they are admissible, they certainly cannot be
excluded on any ground of prejudice.
Now, what my friend is really saying, it is
prejudicial if he is convicted; that is, really,
the argument. Your Honours, as to what my learned friend says may have occurred in the jury room, well,
one does not know and one just assumes the jury
behaved rationally in making the relevant
connections. Perhaps I should say, Your Honours,
that we would not really quarrel with what my
learned friend has said on page 10, paragraph 4:
Does the telecast convey a message which
promotes a product which is the same as
the product the subject of the exhibitedpacket and poster?
The answer to that has got to be "Yes"; namely,
cigarettes. That, in our submission, Your Honours,
is the end of the argument on prejudice.
Might I just say this: that this point about
prejudice appears either not to be taken or, at
the most, but faintly taken, in the notice of appeal
to the Court of Criminal Appeal. They are at page 60, Your Honours and this, really, I do concede, goes to
the question of perhaps discretion which I will come
to in a moment but what they say is - the only one
I can see Your Honours, is what they say is in
paragraph 2:
His Honour erred in law in that he failed
in considering such application -
that is, refusing an application to postpone the
trial -
C2T54/l/SH 77 SIR M. BYERS, QC 12/9/89 United(2) support of its application
to take account of the concession by the accused in
raised a possibility that if a juror had
read it or part of it it might have
influenced their decision in the matter.
Now, Your Honours, there is no other ground of
appeal on prejudice that we can observe, taken.
My learned friend says it is ground 4:
His Honour erred in law in admitting the
oral evidence of Mr Burgess and the cigarettepackets ..... and the photograph -
there is nothing more I want to say. That is what
the notice of appeal says and we say that does not
raise any question of prejudice as apart from
admissibility. Now, Your Honours, that is all I want
to say about the appeal. Can I go to my learned
friend's cross appeal. Your Honours, we have · submitted an outline of our contentions in relation
to the cross appeal. What we say about that, Your Honours, is that the cross appeal raises no
question of law of public importance, nor a question of law requiring consideration of the administration of justice and, of course, we are referring to
section 35(2) and order - do Your Honours have
those?
BRENNAN J: Yes, I think so. Just a moment, we will see if
there is - - -
(Continued on page 79)
C2T54/2/SH 78 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE: I can hand up another one, Your Honour. BRENNAN J: Very well, thank you.
SIR MAURICE: If Your Honour pleases. Your Honour, why we say that is really what all this argument on the
cross appeal goes to is the question of the
construction of this television video, that is all,
and it is a question of fact, but that is all. There is no question of law involved, no question of construction involved, and so we submit, Your Honour,
that there is no case, really, for the grant of
special leave on the cross appeal. So that is the first point we take and the second point we take
is whether this advertisements for cigarettes
was an accidental or incidental accompaniment of
the televising of another matter, likewise, raises
only questions of fact peculiar to the matter
televised.
No question of construction of subsection (10)
is involved in the resolution of the question. The jury found the advertisement was not an incidental
accompaniment and these matters are unrelated to
the question on which special leave was sought.
BRENNAN J: But does it not really raise the question of what
is meant by "incidental accompaniment"? I mean, having seen the telecast one can say whether or not
that telecast is capable of being anything but an
incidental accompaniment. I do not mean to suggest that the view is adverse to you, but simply that the
question of what is meant by an incidental
accompaniment is fairly raised on that material.
SIR MAURICE: Your Honour, all I can say is looking at it one really is not construing subsection(lO) -
there were no arguments advanced by my learned
friend about subsection (10). He just says, "Well, it is incidental". If you look to the whole lot you start at the beginning and, as it were, go through as if the length of it had to do
with the question of whether it was incidental andwhat it was incidental to and, as Mr Robertson
reminds me, Your Honours have not seen the whole
tape and whether Your Honours wish to do that,
of course, is another question, but Your Honour,on no view could it be incidental to what preceded
it, on no view.
Therefore, one has to come to the point where
one gets the television spectacular which lasts,
I think, for some 20-odd minutes, so it is a
substantial thing in itself, and then, no doubt, it
is followed - of course it is - by the game.
Now, what we submit is that whether you say that 1s
C2T 55/1/HS 79 SIR M. BYERS, QC 12/9/89 United(2) incidental or not is purely a question of fact,
and that is all, and it only involves this
particular television broadcast.
BRENNAN J: May I put this proposition to you briefly; if one looks at this alfresco ballet one might be
able to say, "That, in itself, is advertising
matter because it is red and white and there is
a similar environment", and so forth, or one might
say, "That is not advertising matter but once they
brought out the Winfield banner then one can sav
that is advertising matter". Now, if the advertisi.nfs matter consists of the Winfield banner one might then say, might one not, that that is incidental
to the alfresco ballet?
SIR MAURICE: We would submit not, Your Honour, because once you brought out the Winfield banner - this just
illustrates, with respect, how much it is a question
of fact - the Winfield banner is, from my
recollection, white and red. The ladies in question were dancing in white and red costumes, so that· one
had that connection between symbol and language
from the beginning so one cannot, as it were,
segregate it, but one must look at it, as it were, in
one segment, one mass. So we would say once one disregards the question of what went before,
then how is one to say that that segment becomes
incidental in some point that does not bear upon
the factual consideration of the television, the
broadcast, and so it only raises a question of
fact.
(Continued on page 81)
C2TSS/2/HS 80 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE (continuing); Your Honour, might I just also say that in the ROTHMANS' case,5 FCR, at page 347
of the renort there is a reference to the word
"incidental" in connection with much the same
sort of problem. Towards the bottom of the page there is a paragraph beginning:
Rothmans argues that the televising
of the advertisement was merely incidental
to the televising ..... of the football match and
its associated entertainments and that,
as no consideration passed from
Rothmans ..... Counsel argued that an
advertisement is "incidental" if it occupies
only a small part of the total time ..... This
submission cannot be correct. On that
argument any television commercial of, say,
one or two minutes duration inserted into a
break ..... would be "incidental" to the film.
Then they say "incidental" is defined as:
"(l)Occurring or liable to occur in fortuitous
or subordinate conjunction with something
else; casual .- .. (2) Casually met with .... "
The Macquarie Dictionary definition is almost
identical.
It is not difficult to think of
circumstances under which a licensee might
televise matter of an advertising character
as an incidental accompaniment of televising
other matter; for example a televised news
item shows a street scene with advertising
billboards in the background. The transmission may be accidental, in the sense that the
stRf.f ..... do not notice the background
billboard. But it may also be deliberate. The action - which represents a genuine news
item happens to take place in front of the
billboard so that if the news item is to
be used the billboard must also be shown. Under such circumstances the exclusion of "incidental accompaniment" would apply. On no view could you render such consideration applicable here.
McHUGH J: But why, Sir Maurice, could you not take the view that the other matter was advertising the
Winfield Cup and that the advertising matter was
incidental to the advertising of the
Winfield Cup 1984?
SIR MAURICE: Your Honour, the Winfield Cup began shortly before the 'Big Game', if I may use that expression,
so one then sets aside what went before. One then says, "Well, what occurred in the advertising
C2T56/l/JM 81 SIR M. BYERS 12/9/89 United(2) feature was a separate performance, show;' -
if Your Honour will pardon me using that
languaee, but - "performance, a sort of ballet and so on, which was quite distinct from and
separate from the game." It is true that in -
McHUGH J: I had in mind the banner with the words "Winfield Cup 1984".
SIR MAURICE: Yes, right at the end. McHUGH J: Yes. SIR MAURICE: But one had some considerable ballet performance - -
MCHUGH J: But, assuming against yourself that that itself did not constitute either an advertisement
or advertising material, but the real clincher
was the combination of the word "Winfield", thered and white - the colour of the banner and
that was the clincher that makes it matter of
an advertising character, why cannot it be said·
that it was incidental to the other matter being
an advertisement for the Winfield Cup 1984?
SIR MAURICE: Because we submit, with great respect, Your Honour, that it is not incidental in the
normal meaning of the language of"incidental.
If one picks it up as in the sense of "fortuitous
casuar~ it is neither of that sort of thing.
(Continued on page 83)
C2T56/2/JM 82 SIR M. BYERS 12/9/89 United(2)
McHUGH J: It might be in subordinate conjunctior,with? SIR MAURICE: Well, it depends which way you look at it, I
suppose, Your Honour. One could look at the football match as a subordinate conjunction with the advertising, I suppose, in a sense, but I do
understand what Your Honour is putting or what is
concerning Your Honour, but what we respectfully
submit is that it is a self-contained - the segment
was a self-contained - performance. True its object was to advertise both the cigarette and the
performance, no doubt, the football match, it was
designed to do that, but these colours and the
dancing and the reference to the Winfield Cup wereall disparate in the sense that they were related,
and only related to the cigarette, except in the sense
that you can say that the use of the word"Winfield"
in relation to the football somehow made it
incidental to the football.
Now, we would submit, Your Honour, that that
would not be a view reasonably open, however, · Your Honour, we would say that it is only a question of fact, in any event, and it is not one on which Your Honours
would be mindful to grant special leave. Your Honours,
this question is also referred to in the Federal Court's
decision at the bottom of page 349, when Their Honours
say:
The evidence does not disclose whether it -
that is ATN 7 ~
was legally bound to televise everything
that occurred. But, if it was not
bound, it chose to do so. This was not
a case of the display being incidentally
picked up by cameras shm;ing the main
business of the day, the match. There wasno other entertainment during the display.
match, the television station could have Without prejudice to its coverage of the shown other material - such as player interviews or crowd shots - or switched to a difference program altogether during the time occupied by the display. Instead, it transmitted the advertisement; its only
subject of transmission for the duration of
the display. The matter so televised was incidental to nothing; so that subs (10) has no relevance to this advertisement.
And, we would submit those matters are apposite
to the resolution of the present question. Now, I
think, Your Honour - might I just say a word aboutsubsection (10)? Your Honour, we would wish
to say, of course, that subsection (10), whatever
C2T57/l/FK 83 SIR M. BYERS, QC 12/9/89 United(2) happened at the trial perhaps is irrelevant, but
it is an exemption, and that the onus of proving
that lay upon the accused. Now, Your Honours, I
think the course of the trial was such that priorto the commencement of the trial this question was
argued and the learned judge held adversely to the
present appellant, to the Director of Public Prosecution.
But, Your Honour, we want to say, and I can say it
briefly, I think, we say it is a matter of excuse,
because if you look to subsection (10), it says:
(Continued on page 85)
C2T57/2/FK 84 SIR M. BYERS, QC 12/9/89 United(2) SIR MAURICE (continuing):
(10) A reference to the broadcasting ..... of an advertisement shall be read as not including
a reference to the broadcasting or televising
of matter of an advertising character as an
accidental -
so accident, which normally you would think would
lie upon the person who has to show the onus -
or incidental accompaniment of the broadcasting
or televising of other matter in which
circumstances in which the licensee does not
receive payment or other valuable consideration
for broadcasting or televising the advertisingmatter.
And we say, clearly, if you _look to the sort of things that are picked· out, 1'accident", "incidental accompaniment", "no consideration", "no payment or other valuable consideration", they are looking
to things which one would expect the onus of proof
to lie upon the person accused. Your Honour, could -
BRENNAN J: Only if you chose to disregard WOOLMINGTON's case,
Sir Maurice.
SIR MAURICE: Well, Your Honour, I thought I was really seeking
to ask Your Honours to apply some decisions of
Your Honours - - -
McHUGH J: What about applying a decision, I think you argued
as counsel successfully, in RODDY V PERRY, (1958)
SR(NSW), where it was held an exclusion clause of
this - onus is on the prosecution, it is a negative?
SIR MAURICE: All I want to submit, Your Honour, with respect,
is that, consistently with the line of reasoning in
NOMINAL DEFENDANT V DUNSTAN - I do not want to
read it but in the passage they referred to
VINES V DJORDJEVITCH and so on~ It it 10.9 CLR 143, the
passage at page 150. Your Honour, the point is this: my learned frie~d seeks special . leave. He cannot seek special leave upon the basis of an incorrect apprehension of the law. So,
involved in this application is, in our respectful
submission, that a decision should be made as to
whether this is a matter in which the onus lies
on him or not.What transpired at the trial is that the defendant admitted that he did not receive any
valuable consideration and that it was not
accidental. Now, Your Honour, I think that it is what - - -
McHUGH J: Was it the defendant who admitted that? I thought
it was prosecution who - - -
C2T58/l/DR 85 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE: No, the defendant admitted it on the basis
that the onus lay on the prosecution. Your Honour, however, that may be. So, it was possibly
a fairly easy run for my learned friend. Now, Your Honour, that is all I want to say about that but, I submit, Your Honour, one has to decide that
question.
As to the matters of discretion, we have set
them out, Your Honour. I do not want to read them, bearing in mind the time this appeal has taken.
Can I just say something, very briefly, about the
notice of contention. Your Honour, what we wish to
say is: it cannot be said, in any sense, that the packet and the placard are circumstantial evidence
or the fact that the name "Winfield" refers to
cigarettes is circumstantial evidence. Now, I am not quite clear, I must confess, what my learned
friend has in mind~ whether he confines it to the
packet and to the placard, or whether he extends
it to the oral evidence, the whole lo½ but, we
would submit, on no view could it said that those
facts were circumstantial. They are not circumstantial evidence because they go to a matter directly in
issue.
They are direct evidence of what they are, as
it were.and one, therefore, then asks if one is
going to rely on questions about directions, of
what benefit could it be to tell the jury that they
should only regard the packet and the placard ifthey were convinced, beyond reasonable doubt,
that they existed? Obviously they existed.
(Continued on page 87)
C2T58/2/DR 86 SIR M. BYERS, QC 12/9/89 United(2)
SIR MAURICE (continuing): There was no doubt that they
existed. So how can one apply that sort of notion to the facts of this case? There was no
dispute about Mr Burgess' evidence so the whole
notion of a compulsory direction which is
insusceptible of application to the facts denies,
in our respectful submission, that the test does
apply here. In other words, that this is a case
where one is talking about CHAMBERLAIN'S case,
circumstantial evidence,or that if one is talking
about circumstantial evidence, the rule must be capable of application, sensible application to the facts of the case.
Just one other matter, again on a question of discretion, I may be misquoting my friend but
I do not think that this point was one which was
taken in the notice of appeal to the Court of
Criminal Appeal. The only other matter I wish to say, Your Honours, is this: that there would seem to be still outstanding matters. For example, one
of the grounds of appeal is a question of penalty
and I think there are other questions that were
argued. The Court has taken the view or did take the view in REG V MURPHY, 158 CLR 596 that
when matters were outstanding l:efore a ro..n:t telav, it
should not embark itself on the resolution of the
main question. The passage is at page 620 where Your Honours will find those observations made.
Your Honours, that is all we would wish to say in
reply.
BRENNAN J: Thank you, Sir Maurice. Mr Nicholas, do you have anything to say in reply on the cross appeal?
MR NICHOLAS: No, Your Honour. BRENNAN J: The Court will consider its judgment, both on the appeal and on the application for special leave
to cross appeal and on the cross appeal if special leave should be granted.
AT 3.09 PM THE MATTER WAS ADJOURNED SINE DIE
C2T59/l /SH 87 12/9/89 United(2)
0
1
0