Director of Public Prosecutions v United Telecasters Sydney Limited

[1988] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S95 of 1988

B e t w e e n -

THE DIRECTOR OF PUBLIC 'PROSECUTIONS

Applicant

and

UNITED TELECASTERS SYDNEY LIMITED

Respondent

Application for special leave to

appeal

MASON CJ
BRENNAN J

GAUDRON J

United

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 NOVEMBER '1988; 'AT '2'. 49 PM

Copyright in the High Court of Australia

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SIR MAURICE BYERS, QC:  If the Court pleases, I appear with

my learned friend, MR A. ROBERTSON, for the

applicant.	(instructed by the Director of Public
Prosecutions)

MR W.H. NICHOLAS, QC: If the Court pleases, I appear with

my learned friend, MR G.O. REYNOLDS, for the

respondent. (instructed by Blake Dawson Waldron)

:MASON CJ: Sir Maurice.

SIR :MAURICE:  Your Honour, the case concerns section 100

of the BROADCASTING ACT, in particular,

subsection (SA) of that Act. We have photocopies

of the Act and of the only cases that are relevant

in the judgments below. I hope Your Honours will

not be too dismayed by the size of these things.

:MASON CJ: The folder seems large but it does not seem to

have very much in it.

SIR :MAURICE:  But the contents, Your Honour - I was going to

say miniscule but perhaps that is not right. If

Your Honours would allow me - while section 100 has

been altered, the relevant parts of it and
particular section l00(SA) still applies to all
commercial television stations throughout Australia

and it qualifies the right that a licensee

has to advertise, as Your Honours see. And the

legislation as it stood at the time: he may -

broadcast or televise advertisements -

he is to give -

particulars of his advertising charges.

He is not to discriminate any person unreasonably or without reasonable cause. He has got to comply with standards. He is not to broadcast television

on a Sunday except under those conditions and

(SA) says:	A licensee shall not broadcast or televise an advertisement for, or for the smoking of,
cigarettes or cigarette tobacco.

And that was the matter in issue in the present case.

I do not think I need to worry Your Honours with the

rest cf~tke section.

Now, Your Honours, what happened was this:

the respondent, as a preliminary to broadcasting a

rugby league final football match, broadcast what was

called as a segment of a dance spectacular of which

there were a series of - I think the Chief Justice

referred to as "well drilled" or "well 1ressed",I am

not sure now, "young ladies" who danced about on the

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football ground. The announcer announced with

"dramatic intonation" - and that is the Chief Justice's

phrase - that this was a Winfield production or

spectacular and that the name "Winfield" was tatooed

between the goal posts at each end of the field and

the ladies also had what the Chief Justice rather

inelegantly refers to as a tarpaulin but I mean

some sort of piece of material on which the word

"Winfield" was apparent.

Now, Your Honours, in due course the matter

proceeded to a trial; this being by both a breach
of the licence and an offence under section 132.

At the trial a gentleman was called who gave evidence that Winfield was the name of a brand of cigarettes and that certainly Rothmans did not market any other

product under the name of "Winfield". And there was

also tendered a cigarette package, no doubt for the

same purpose, to show that Winfield is the name of a

brand of cigarettes, and a photograph of a hoarding

advertising cigarettes in association with Winfield.

Now, it went on appeal and all the judges said that as a matter of construction of subsection (SA)

the matter that had been intended was irrelevant and
that the section therefore excluded evidence where a

name was used in an advertisement and that was the
name of a brand of cigarettes, the learned judges
all saying, for various reasons, that the jury,

as part of their knowledge of the community affairs

were apparently obliged to bring to bear their knowledge

of brand names of cigarettes and this was part of their

function as a jury - not as 'an Anglo-Saxon jury or

Saxon jury but as a modern jury. So, they

were denied the right of the evidence to say that the

name is a name of a brand of cigarettes and they were

required to judge the television without regard to

evidence of that fact, and that was said to be a

question of construction of section 100_(5A).

of· course, Your Honours, on its face•; if one

looks to section 100 (SA), ::.it can hardly be said that

it forbids is an advertisement, covert, overt, of	that requires anything about the mode of proof. What
any type for cigarettes or cigarette tobacco and therefore it would cover - and I think the learned judges would not perhaps have disputed this - the case where what was advertised was a name such as Lord Veer de Veer or Winfield or Capstan or Craven A and so on. One can imagine all these multiplicy of names that can be used and were used. What happened in this case was, of course, the word "cigarettes" was
not used and so it said you were not entitled to prove to the jury that Winfield was a name of a brand of
cigarettes. So, although it was an advertisement,
and all the learned judges seemed to take that view -
the Chief Justice referred to it as "an advertisement
of Winfield". He said, "It's an advertisement, all right
but you are denied the right to know that Winfield is a
name of a brand of cigarettes and you are denied that

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right as a matter of construction of subsection (SA)."

So, Your Honours, we submit that - of course, one

starts off with the basis that that is clearly wrong.

Now, Your Honours, I can take Your Honours to the various judgments to indicate the reasons the

Chief Justice - if I could just take Your Honours to page 67. The Chief Justice, having referred to,

at line 7, the"dramatic intonation", which is a good

phrase, I must admit, he says at line 20 - - -

MASON CJ: Sir Maurice, I think we can relieve you from troubling

us further at this stage.	We will hear what
Mr Nicholas has to say.

SIR MAURICE:	As Your Honour pleases.
MR NICHOLAS:	If Your Honours please, we would submit, with

respect, that the issue that the Court of Appeal

was dealing with was not quite how my friend would

put it. It really was not a matter going to the

construction of the Act. What was being considered

by the Court of Appeal was whether, when the

jury come to consider whether or not what my client

published, constituted an advertisement; whether

they were entitled to have before them extrinsic

evidence as, in effect, an aid to that process.

"Extrinsic evidence'; of course, the product of some

other party's activity.

BRENNAN J: Extrinsic to what?

MR NICHOLAS: Outside the programme, if I may say so, Your Honour:

We were prosecuted for broadcasting this programme.

It was alleged that by means of the content of the programme, the images and so on, that matter within

the programme published by my client constituted an
advertisement for cigarettes.

Now, the evidence of Mr Burgess, the Rothmans' man called to say that the name "Winfield" was used

only in relation to cigarettes, the evidence of the cigarette packets which had - I think a picture of	them is reproduced in the book, Your Honours, but it
has the colours of the packet, obviously enough,
which corresponded with the red and white, I think, colours used by the women and on the flag, and it
had a photograph of the hoarding used on the roadsides
to advertise Winfield cigarettes. Now, that was the material which was allowed in and which we say constituted extrinsic material, extrinsic to the
publication for which we were responsible and in
respect of which we were prosecuted.

BRENNAN J: Were there any admissions made for the purposes of

the trial?

MR NICHOLAS:  By my client, Your Honour?

BRENNAN J: Yes.

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MR NICHOLAS:  Yes, we admitted that we published the programme.

BRENNAN;J:  The programme. So what was in issue was whether

or not it was an advertisement for cigarettes?

MR NICHOLAS: That is so.

GAUDRON J: And you have to go then to the point and say

that being the fact in issue there were not facts

relevant to that fact, do you not?

MR NICHOLAS:  Your Honour, the way we put it, if I may answer

it this way, Your Honour, is that we said that the

determination of whether or not the matter that we

published, that is to say this segment on television,

constituted an advertisement for cigarettes was a

matter of fact for the jury to determine having regard

to what we published.

GAUDRON J:  But why? Why would you limit it in that manner?

It is not a document as such.

MR NICHOLAS:  Your Honour, that is the way we put it, with great respect. We said that the .content of the

matter that we published would be judged objectively

and it will be judged having regard to the message

which it, unaided, conveys. And we would submit,
with respect, that that was as the Court of Appeal

found unanimously, that that was completely consistent

with what this Court said in CROWE V GRAHAM in

relation to the obscen.f..t¥- matters and the way the

Court will approach the determination as to whether

or not the content of a publication is obscene
or conveys a message such as that.and, of course,
the judgment of His Honour Mr Justice Gibbs in the

RORARY OFFSET case, and I can take Your Honours to

them. Perhaps I should.

But if I can indicate to Your Honours how

the Court of Appeal dealt with it and.then I can

take you to the cases that they considered. Now,

Your Honours, the judgment of the Chief Justice

begins at page 56 of the book and he begins this

~spect of the matter at the foot of page 57, line 20:

There is one comparatively short point

that, in my view, must necessarily lead to

the appeal against conviction having to be

allowed. Sub-section (SA) constitutes it
an offence to televise an advertisement for

cigarettes. Nowhere in the segment in

question was the word cigarettes used.	The
only word relied on by the prosecution as

meaning cigarettes is the word "Winfield".

The segment can, for present purposes, be accepted as being an advertisement for

Winfield.

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It was urged upon the jury by the Crown

that the colours red and white are distinctive

of Winfield cigarettes. Some additional

strength was sought by the Crown to be gained

from the various manoeuvres of the young women

dressed in red and white in the segment. A

link was said to exist between what was there

being presented to television viewers and

Winfield cigarettes.

In the course of the Crown case a senior

officer or Rothmans of Pall Mall (Australia)

Limited was called. Over objection on behalf

of the appellant he was permitted to give

evidence that Rothmans of Pall Mall are the

proprietors of the name Winfield and that

Winfield is a name solely used by that company

as the name of cigarettes. There was also
permitted to be tendered through him a specimen
packet of Winfield cigarettes and a photograph
of a roadside advertisement hoarding. This

lastmentioned evidence was put forward by the

Crown as material establishing the link between

the red and white ballet sequence and the

distinctive get up of Winfield cigarettes.

The appellant objected to the whole of the proffered evidence of this senior officer. The ground of objection as noted in the transcript

adequately states the particular basis upon

which it was sought to have these matters

excluded from evidence:

"The identification of packets thows up this

question of extraneous material and symbolism.

We have heard extensive argument about that

and this material plays no part in the

interpretative process the jury is required

to undertake, and it cannot be s~td that my

~lient can be responsible for the activities

of others in - .... __ ·: · ·-

"disseminating", I think the word should be,

Your Honours -

these objects. The situation comes down to

either the public is so familiar with Winfield

and its relationship with cigarettes as to

seeing the name and seeing the material in

this tape as to make the connection or it is

not 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 juryroom when they retire."

His Honour, line 10, took the view that:•

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the objection was well founded and the

additional material ought not to have

been admitted.

And, Your Honours, the way the Chief Justice saw it

appears at line 32 on page 59:

The Crown, on the other hand, contends

that it was entitled to lead explanatory

evidence for the purpose of proving that

the name "Winfield" was the name of a

well known brand of cigarettes and that

they were marketed in a red and white

get up reflected in some of the sequences

in the ballet presentation.

In my view the appellant's contention

repres.ents the correct construction of this

penal statute. 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 - - -

MASON CJ: Well, His Honour was quite:·.wrong, was he not, in

saying that it was a matter of construction of the

statute. It is a question of proof.

MR NICHOLAS:  It is a question of proof, Your Honour, yes.

With respect, it is quite apparent that that is

really what he means in the way it emerges from the

rest of his judgment and the way the other judges

dealt with the question.

MASON CJ:  But this view seems to be productive of the most

extraordinary results, in other words, that there

would be a much greater chance of the prosecution

securing a conviction where the name was widely
known in connection with cigarettes as against the

case where the name was not widely _known. and was

known only to a small section of the connnunity.

Take, for example, a name that is just launched on

the market, an advertisement with the name featured

but the name not generally known. Now, if this rule

is to be applied the prosecution would hardly ever

succeed in obtaining a conviction under section l00(SA).

MR NICHOLAS:  Your Honour, we would say it comes back to this:

if the jury are required to make a judgment about the message conveyed by the publication, they are required to do that,according to the principles,

objectively. Now, they will do that by bringing to

bear their general knowledge of matters in the

connnunity. Now, either it is a matter which can

be said to be part of their general knowledge that
they bring to bear in the jury-box when dealing with

questions like this or it is not. It is a matter for

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them~ Your Honour, whether the advertiser, in the

example that Your Honour cites, has got his message

through so that - take, for example, Hoover

vacuum cleaners. Now, Hoover has, over the years,

become, in effect, synonymous with vacuum cleaners.

Now, Your Honour, that is a matter which - if one

used the word "Hoover" in a matter such as this,

one would leave it to the jury and one might expect

the jury to come back with suggesting that it is a

clear reference to vacuum cleaners, but it is purely

a matter for them having regard, unaided we would

put to Your Honours, to their experience.

BRENNAN J:  Mr Nicholas, on page 57, in a passage that you have

read to us, the Chief Justice says:

The segment can, for present purposes, be accepted as being an advertisement for

Winfield.

Now, I take it that you accept that proposition?

?-1R NICHOLAS:  No, we do not, Your Honour.

BRENNAN J: You do not, all right. Well then, let us

assume that the Chief Justice is right in saying

that it is or at least it: is capable of being found

by the jury to be an advertisement for Winfield.

?-1R NICHOLAS:  Yes.

BRENNAN J: That would leave one question still outstanding,

would it not: are Winfield cigarettes?

?-1R NICHOLAS:  Your Honour, perhaps it could be put this way,

with respect:  does a reference to Winfield -

having regard to the context in which that name

appears - and Your Honours have been spared from

watching it - does that convey the necessary message?

Now, that is a matter, we would say to Your Honours,

entirely for the jury and they will make their

assessment about that, having a look at what

GAUDRON J: One can accept it is a question for the jury.	my client published in regard to their - - -	Why is it not a fact relevant to the factual issue that there are cigarettes, the brand name of which
is Winfield?

?-1R NICHOLAS:	Your Honour, because the matter, the subject of the prosecution, is that published by my client.
Now, the prosecution stands or falls on establishing
that what  went out over the air waves
constituted an advertisement for cigarettes. And,
we say, Your Honours, the juryf in·reaching a conclusion about that, will take into account
its awareness of the impact that advertisers elsewhere might have had whether the message about Winfield from elsewhere has permeated its knowledge.

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Your Honours, we would remind the Court - and this was the approach which found favour with

the Court of-Appeal - that in the cases, those

that have been dealt with in this Court dealing with
the content of matter, the obscenity cases:

CROWE V GRAHAM - in dealing with whether or not

matter published constitutes. an advertisement,·

a ROTARY OFFSET PRESS case, the matters are looked

at entirely objectively without resort to outside	evidence. Similarly, the libel cases are well known
and the approaches to those matters have been
followed, we would suggest, consistently.

BRENNAN J: Mr Nicholas, could I just ask you: if your.

might have been wrongly influenced to find against	argument be right, what was the fact which the jury
your client by reason of the admission of the
extrinsic evidence?

MR NICHOLAS:  Your Honour, I suppose this is what this

application really comes down to, with respect. it is

a combination of relevance of evidence together

with the prejudicial effect that this material would have in a criminal trial.

BRENNAN J: The unduly prejudicial effect?

MR NICHOLAS:  Yes, because you see, Your Honour, they go away

in the jury room and they have in front of them

the cigarette packet and the photograph of the

hoarding.in the colours and with the names and so.

Quite clearly they are stamped on cigarettes.

There can be no doubt about that link. And then,

we would suggest to Your Honour that in circumstances

such as that it quite clearly would be inr1uent1.al

in their process of assessing the character of the

publication about which we were prosecuted.

BRENNAN J:	In their finding of what fact?
MR NICHOLAS:	That the publication constituted an advertisement

for cigarettes.

BRENNAN J: In that case that must. be because that evidence

is capable of proving that fact.

MR NICHOLAS:  We would say·, not, with respect, Your Honour.

We would say that it - well, the risk to us, of

between the name "Winfield" and the use of the colours	course, is that it may provide for the jury a link
in the segment which went out over the air without, of course, any reference to cigarettes and so on,
and from outside a separate reference which clearly
associates the name and the get up and so on with
cigarettes, something, which is plain enough,
Your Honour, which is the not act for which my
client was responsible. Now, they have got that

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material sitting there and it is quite plain and,

we would suggest, it secured the conviction of my

client, that they had this material which pushed

the doubters over the edge, as it were, and quite

plainly must have influenced them in a way prejudicial

to my client. In other words, they were given

extrinsic material to look at in coming to their

view and we would submit, with respect, that that

was just wrong_ that that should have been available

to them.

Your Honours, Mr Justice Lee, at page 65,

line 2:

The section, on its face, is designed

to prevent the medium of television being

used as a means of promoting cigarette

smoking and it is directed to what the

viewer sees on the television screen; it

is aimed to prevent him being confronted with

an advertisement for cigarettes and being

possibly influenced by it. That is the

matter prohibited. In that context, whether

an advertisement is an advertisement for

cigarettes is dependent solely upon the

content of what is alleged to be in the
advertisement. The section, it is to be

noted, also contemplates that where the

material -

well, I need not trouble Your Honours with that.

And coming down to line 17:

The approach which I have taken in the

matter, in my view, gains support from the
decision of the Federal Court in ROTHMANS V

AUSTRALIAN BROADCASTING TRIBUNAL -

and made reference to the ROTARY OFFSET PRESS case,
and over on the next page Your Honours will see from

line 5:	The court then referred to the observations of
Gibbs J when the ROTARY OFFSET PRESS PTY LIMITED
case was dealt with by him at first instance,
and the passages of his Honour's judgment have
been referred to in the judgment of the
Chief Justice, and I dorot repeat them. 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 wha.i.. must be looked

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at is that which is alleged to be obscene,

indecent, etc and nothing more, in order

to judge its quality.

And Your Honours see the references there. And he

concludes:

In my opinion, in a case where what is

televised does not of itself, in the view of

a substantial proportion of the connnunity,

appear to be an advertisement for smoking,

then the section is not infringed; and it

follows that what appears in the telecast

itself cannot, by extrinsic evidence in a

prosecution later brought, be given a different

complexion from that which it presents

standing alone.

And we would submit to Your Honours that what

Mr Justice Lee, with.respect, is saying is absolutely correct and is consistent with all of the authorities that are there cited, and the approach that has been

consistently adopted in matters such as this. And

His Honour coricludes at page 67, line 10:

On a proper construction of the section,

that material was wholly irrelevant and

accordingly should not have been admitted.

his directions make clear, on the footing intended that it should go to the jury as	The case went to the jury, and his Honour
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.

Mr Justice Hunt, on the same page, at line 22: The only material which was relevant to that

issue was the telecast itself, together

with any other matters which were within the

general knoweldge of the connnunity. That is the law in many different fields

of endeavour - for example, in defamation:

JONES V SKELTON (1963) 63 SR 644 at 650;

and in obscenity cases: CROWE V GRAHAM

. (1969) 121 CLR 375 at 394, 398-399.

And the references to the other cases are there given.

And His Honour puts the question at line line 9 on

page 68:

Evidence of what is within.the general

knowledge of the connnunity is neither

necessary nor permitted. In the present

case, the jury had to determine whether the

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name "Winfield" - which was displayed

during the telecast in the context of
the words "Winfield Cup 1984" shown on

a large banner or tarpaulin, being a

description of the football game to be

played - is regarded by the comm.unity

generally as also synonymous with

cigarettes. That was very much a question

of fact for the jury, to be determined by

reference to the jury's understanding of

what is within the general knowledge of

the comm.unity, without specific evidence.

The evidence which was led from an

employee of the manufacturer of Winfield

cigarettes that that name was used by that

company in solely in connection with

cigarettes was not admissible and, in

the circumstances, it was highly prejudicial	to the appellant.
Your Honours, we go on to say this, with

respect. There are some observations of

Your Honour Mr Justice Brennan in READER'S DIGEST

SERVICES PTY LTD V LAMB, 150 CLR 500. I regret to

say the copy of the authority has not been put

before Your Honours but may I take the liberty of

reading a passage from it at page 506 where

Your Honour Mr Justice Brennan was looking at the

role of the jury and the approach that was expected

of them in their task. And at page 506 Your Honour

says this, dealing whether or not a matter would

be - words published would be understood in a

defamatory sense:

That simple question embraces two elements

of the cause of action: the meaning of the

words used (the imputation) and the defamatory

character of the imputation. Whether the

alleged libel is established depends upon

who are taken to have a uniform view of the

the understanding of the hypothetical referees

meaning of the language used, and upon the
standards, moral or social, by which they
evaluate the imputation they understand to

have been made. They are taken to share a

moral or social standard by which to judge

the defamatory character of that imputation,
being a standard comm.on to society generally.

And Your Honour went on to say:

The challenged evidence was equally inadmissible to show that the pleaded ·

imputations were defamatory, though it m&y

be inferred that among the members of a

profession bound by a code of ethics a

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member who transgresses the code is likely

to be lowered in the estimate of others.

But the moral or social standard by which

the defamatory character of an imputation

is determined is not emenable to evidentiary

proof;	it is pre-eminently a matter for
they consider to accord with the attitude	the jury to give effect to a standard which
of society generally.

And Your Honour went on to say at page 507:

The defamatory nature of an imputation is

ascertained by reference to general community

standards, not by reference to sectional

attitudes.

Now, Your Honours, what we would say there is

completely consistent, with respect, to the approach

that is dealt with in the other situations exemplified

Tl2	in Their Honours' judgments. The matter at the end of the day comes down for the jury,drawing on their
unaided knowledge of community matters, the conclusion
that they will draw. It is their evaluation process
and the resource they have is the knowledge of the kind that we have been putting to Your Honours.
Your Honours, we say that this extrinsic material goes
improperly beyond that.

But, Your Honours, a·ccepting. far. the moment that

we are wrong in what we have been submitting to

Your Honours, nevertheless, we would submit,

that this is not an application or a situation which

warrants the grant of special leave. It is quite ·

plainly, with great respect, a matter - it is a

criminal prosecution in respect of which a new trial

has been ordered and, doubtless, a new trial may be

expected. It is a matter which goes to the relevance

of certain evidence in, what we would suggest to

Your Honours, a limited context. We would submit,

with great respect, it raises no question of general

importance relating to the construction of this

statute at all. What it raises is the question of

whether or not certain evi.clence, in the course of a particular

trial, may be tendered to aid a jury ciecicting as a

matter of fact whether or not the content of particular

material constitutes an advertisement for cigarettes,

and that, Your Honours, is not the sort of matter

which would excite the interest of this Court so as

to warrant the grant of special leave. Our submission

is that the application should be refused on those
grounds, if not on all the other matters that we have
put to Your Honours. Those are the submissions, if

the Court pleases.

MASON CJ:  Thank you, Mr Nicholas. We need not trouble you,

Sir Maurice. There will be a grant of special leave

in this matter. The Court will now adjourn sine die.

AT 3.23 PM THE MATTER WAS ADJOURNED SINE DIE

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