Hinch v Attorney-General (Vic)

[1987] HCA 56

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Deane, Toohey and Gaudron JJ.

HINCH and MACQUARIE BROADCASTING HOLDINGS LIMITED v. THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA

(1987) 164 CLR 15

2 December 1987

Contempt of Court

Contempt of Court—Publication tending to influence court proceedings—Public interest in due administration of justice—Public interest in freedom of expression—Balancing of interests—Pending criminal trial—Absence of intention to interfere with administration of justice—Significance—Costs.

Decisions

MASON C.J. The foundation of the modern law of contempt as it applies to publications which have an impact on cases coming before the courts is the judgment of Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242, at pp 249-250. The issue there was whether the respondents, in publishing articles concerning the bread trade which were incidentally critical of the applicant's activities in that trade, had committed a contempt in relation to civil proceedings for libel and conspiracy in which the applicant was a defendant. Some articles had been published after these proceedings had been commenced. His Honour sought to balance the competing public interests: one, the need to protect the integrity of the administration of justice, and the other, the protection of freedom of expression, especially when that freedom of expression is exercised in relation to a topic which is, or should be, of concern to the public or a section of the public. The judgment has had a profound influence on the law of contempt, not only in Australia but elsewhere, notably in the United Kingdom.

2. The critical passage is in these terms:

"It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.

It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter ..."

3. The effect of these observations is central to the outcome of the appeals in the present case, the grant of special leave to appeal having been restricted to grounds which canvass the principles of the law of contempt as stated in Bread Manufacturers and Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 ("BLF"). The appeals arise out of a series of three radio broadcasts made by the first appellant, Mr Hinch, on a Melbourne radio station owned by the second appellant. The broadcasts related to one Michael Glennon against whom charges of child molestation had been laid. He was charged on 12 November 1985 on an information alleging nine counts of indecent assault, one count of buggery and two counts of assault with intent to commit buggery. The offences had been committed between 1 January 1975 and 30 June 1983 upon young male persons. He was remanded on bail to appear at the Melbourne Magistrates' Court on 8 April 1986.

4. Father Glennon, who had been ordained as a Catholic priest, occupied a position as the Governing Director of the Peaceful Hand Youth Foundation Pty. Limited (the "Foundation") an organization which conducted children's camps and other activities for children. On 13 November, the day following the day on which Father Glennon was charged, Mr Hinch made the first of the three radio broadcasts in which he drew attention to the fact that Father Glennon had been charged with offences against teenage boys. Mr Hinch prefaced his reference to this fact by saying:

"Now, I want to go back to a case - late yesterday we learned about it - we learned of a Catholic priest who allegedly used his clerical robes as a bait for his flock."

He later referred to Father Glennon's position as Governing Director of the Foundation and revealed that the alleged offences took place between 1975 and 1982 at the Foundation's camp called "Karaglen" at Lancefield. Mr Hinch, after stating "Police say Glennon was forced to resign from practising within the Catholic Church after he was charged with sexual assault and jailed in 1978", went on to say that Father Glennon was charged with rape in 1978 and that, having pleaded guilty to indecent assault of a 16 year old girl, the police did not proceed with the rape charge. Mr Hinch asserted that Father Glennon was sentenced to two years jail on the charge to which he pleaded guilty and that he was later acquitted on two counts of rape involving a 12 year old boy. At the conclusion of the broadcast Mr Hinch raised the question how it was that Father Glennon had continued to run the Foundation, having regard to his responsibility to take children into his care, when he had a sexual criminal record involving juveniles.

5. On 15 November Mr Hinch made another broadcast in which he raised the matter once again, referring to the pending charges of molestation dating back to 1975 and disclosing that Father Glennon had pleaded not guilty to all the charges. He revealed that the Foundation's secretary had confirmed that Father Glennon would nevertheless remain as Governing Director. Mr Hinch then made the comment "That is, despite a jail sentence for indecent assault, the man will stay in that position." He again raised the question of how Father Glennon could continue to hold his senior office in the Foundation "after being jailed on an indecent assault charge".

6. On 17 February the Attorney-General filed a notice of motion alleging that the appellants had committed contempt. That motion was adjourned on the return date to 11 March 1986. On 7 March 1986 Father Glennon was charged with two counts of indecent assault of a female and one count of rape and was bailed to appear at the Melbourne Magistrates' Court on 8 April 1986. The offences were alleged to have been committed at Lancefield between 1 July 1982 and 30 November 1982.

7. On 11 March 1986 the first appellant made his third broadcast in which he again referred to Father Glennon's prior convictions and to the charge on two counts of rape involving a 12 year old boy on which Father Glennon had been acquitted. Mr Hinch referred to the latest charges against Father Glennon and concluded the broadcast by asking the question raised in the earlier broadcasts.

8. The thrust of this broadcast, like that of the earlier broadcasts, was, having regard to the nature of the pending charges of Father Glennon's past record, to highlight the danger to children inherent in Father Glennon continuing to occupy his position as Governing Director of the Foundation and to question how it was that he was permitted in the circumstances to continue in that position. It seems that Mr Hinch was and had been greatly concerned by the problems of child molestation.

9. The Attorney-General filed a second notice of motion alleging that the appellants were guilty of contempt arising out of the third broadcast. The motions were heard by Murphy J. who found the appellants guilty of contempt in relation to the three broadcasts. On the first motion his Honour imposed fines of $25,000 on both of the appellants. On the second motion his Honour imposed a sentence of imprisonment of 42 days on the first appellant and a fine of $30,000 on the second appellant. On appeal the Full Court of the Supreme Court of Victoria (Young C.J. and Kaye J., Nicholson J. dissenting) reduced Mr Hinch's sentence to 28 days and reduced the fines of $25,000 to the sum of $15,000 in each case.

10. The appellants submit that, in accordance with the approach adopted by Jordan C.J. in Bread Manufacturers, the question whether the appellants committed any contempt is to be determined by balancing the considerations affecting the public interest in freedom of discussion on the one hand and the public interest in protecting the administration of justice on the other and that, on a correct balancing of these considerations, the question must be answered in favour of the appellants. The appellants' case therefore calls for a close consideration of the judgment in Bread Manufacturers and of the subsequent development of the principle which it expresses.

11. For obvious reasons it is necessary to give close consideration to the fourth sentence in the passage which I have already quoted from the judgment of Jordan C.J. The question arises whether that sentence expresses a principle of law that governs references to pending criminal proceedings when such references form part of any discussion of public affairs or any denunciation of public abuses.

12. Although Bread Manufacturers concerns an alleged contempt in relation to civil proceedings, the principle expressed in the judgment applies to publications prejudicial to criminal proceedings as well. In John Fairfax &Sons Pty. Ltd. v. McRae (1955) 93 CLR 351, Dixon C.J., Fullagar, Kitto and Taylor JJ. (at p 372) proceeded on the footing that the principle applied to a publication in a newspaper relating to criminal charges pending in a court of petty sessions (see also: Registrar of the Court of Appeal v. Willesee (1985) 3 NSWLR 650, at pp 659, 677, 681). There is no acceptable basis in principle or theory for drawing a distinction between the rules of the law of contempt as they apply to civil and criminal proceedings. The law of contempt is concerned to reconcile the public interest in freedom of discussion and the provision of information which the public has a legitimate interest in knowing with the public interest in the integrity of the administration of justice, including the need to protect the fair trial of both criminal and civil proceedings, without drawing any distinction between the two, except in so far as it may be necessary to take account of their different characteristics in deciding whether a contempt has been committed or should be punished.

13. The present case then raises for consideration a fundamental question. How does the law of contempt approach the discussion of a topic of public concern or interest when in the course of that discussion the speaker or the author makes explicit reference to proceedings in which an individual has been charged with a criminal offence and that reference bears on the guilt or innocence of the accused or is capable of prejudicing him in his trial for that offence? Does the law balance the considerations relevant to the competing public interests, as the appellants submit it should? Does it apply a test or formula, such as that suggested in the fourth sentence of the passage quoted from the judgment of Jordan C.J.? Or does it apply a combination of these approaches?

14. It is evident from a reading of the passage quoted from Jordan C.J.'s judgment that the third sentence asserts that there will be some occasions when the public interest in the administration of justice may be required to yield to a superior public interest in freedom of discussion and the free flow of information. The fourth sentence then asserts that in such a case the publication does not amount to a contempt, even if it causes "some likelihood of prejudice to a person who happens at the time to be a litigant", so long as it causes that likelihood "as an incidental but not intended by-product" of the discussion of the topic of public concern or interest. This sentence, in the context in which it appears, is not so much a statement of principle as an example of a publication which has not crossed the borderline because, being a discussion of a matter of public concern or interest, it fortuitously causes an unintended risk of prejudice to a litigant. As later passages in the judgment indicate, the risk of prejudice will be fortuitous and unintended if the author or publisher is unaware of the particular litigation. The final sentence in the passage which I have quoted indicates that Jordan C.J. was speaking with particular reference to the continuation of a public discussion which had begun before the commencement of the relevant proceedings. His Honour was concerned to make the point that in such a case the public discussion may continue, without amounting to a contempt, notwithstanding that the issue in the litigation relates to the subject-matter of the discussion, so long as the possibility of prejudice to the litigation is a fortuitous and unintended by-product. In these circumstances the fourth sentence should not be regarded as a comprehensive principle applying to the discussion of any topic of public concern or interest, initiated when the relevant litigation is pending.

15. The judgments in BLF did not treat the fourth sentence as the expression of a governing principle to be applied whenever the publication is identified as one involving the discussion of public affairs or the denunciation of public abuses. The issue in BLF was whether the inquiry and report by the Royal Commissioner concerning the alleged illegal activities of a nation-wide union would interfere with civil proceedings for deregistration of the union. No member of the Court resolved the question solely by reference to a test of the kind stated in the fourth sentence. Although the judgments referred to it (see pp.59, 95, 133, 175), it was not regarded as a decisive criterion of the non-existence of contempt. Of course BLF did not lend itself to resolution by the application of such a test, there being no actual publication to which it could apply. Nonetheless the tenor of the judgments is inconsistent with the suggestion that Jordan C.J. was prescribing such a precise and far-reaching test. Although Gibbs C.J. and I applied a test, it was not the suggested test. Gibbs C.J. said (at p.60) that:

"... the court (must) be satisfied that there is a real risk that the material alleged to be a contempt will interfere with the administration of justice in pending proceedings before it can hold that a contempt has been committed or threatened".

And I concluded (at p.98) that the issue in that case was whether there was "a substantial risk of serious injustice".

16. In BLF the members of the Court acknowledged that it was necessary to balance the competing public interests in freedom of expression and fair trial. However, there was disagreement about what was involved in the balancing process. Stephen J. (at p.75), Wilson J. (at pp.133-134), Brennan J. (at p.177) and I (at p.95), adopting the approach taken by Deane J. (with whom Bowen C.J. and Evatt J. agreed) in the Full Court of the Federal Court (1981) 53 FLR 396, at p.403; 37 ALR 470, at pp.475-476, considered that it was necessary to balance the various considerations reflecting the competing public interests in those cases in which there is no intention to interfere with the administration of justice. Gibbs C.J. (at p.60) thought that the Court balanced the competing interests in formulating the principle to be applied and I considered (at pp.98-99) that the case was ultimately to be resolved by applying the test mentioned above.

17. In passing I should mention that in BLF Brennan J. (at pp.169, 175-176) drew a distinction between a technical contempt and one which moved the court to action. This led his Honour to the view that the balancing of the two public interests takes place when the court decides whether to punish a contempt. Gibbs C.J. (at p.60) also distinguished between a contempt and a contempt that merited punishment. Although the other members of the Court did not explicitly discuss the distinction between a technical contempt and a punishable contempt, Stephen J. (at pp.74-75), Wilson J. (at pp.133-137) and I (at pp.95-96, 98) dealt with the matter on the footing that the balancing of the two public interests takes place at the stage when the court decides whether a contempt has been committed. It is unnecessary to resolve the question in the present case.

18. It was suggested that the balancing approach view was confirmed in Waterhouse v. Australian Broadcasting Corporation (1986) 61 ALJR 24; 68 ALR 75. There Gibbs C.J., Wilson and Dawson JJ., when refusing special leave to appeal against the refusal of an application to restrain the telecast of a programme said to interfere with the fair trial of one plaintiff and civil proceedings involving the other plaintiff, stated that the primary judge was required to make a discretionary judgment "balancing two principles of great importance". Although the comment on its face seems to support the balancing approach, I am not inclined to give much significance to it. It was an ex tempore comment made in the course of refusing an application for special leave to appeal.

19. In Attorney-General v. Times Newspapers Ltd. (1974) AC 273, Lord Reid and Lord Simon of Glaisdale cited with approval the Bread Manufacturers' principle (see pp 296-297, 319) in support of the statement that there must be a balancing of considerations. Lord Reid quoted the Bread Manufacturers judgment immediately after saying (at p.296):

"There must be absolute prohibition of interference with a fair trial but beyond that there must be a balancing of relevant considerations."

20. Despite this statement there are examples of circumstances in which on a balancing approach the public interest in the administration of justice would necessarily give way to the public interest in freedom of discussion of an important topic. So Wilson J. in BLF (at p.132) instanced a fair and accurate report of court proceedings made in good faith. And McHugh J.A. in Attorney-General for New South Wales v. John Fairfax &Sons Ltd. and Bacon (1986) 6 NSWLR 695, at p 714 mentioned a fair and accurate report of proceedings in Parliament made in good faith.

21. It has never been suggested that a fair and accurate report of committal proceedings made in good faith would amount to a contempt, notwithstanding daily reports in the news media of elements in a Crown case which might have a strong tendency to induce readers and viewers to conclude that the accused is guilty of the offence charged. A report of committal proceedings has a special capacity to influence the minds of potential jurors because the evidence is directed to the very issues which will arise at the trial and the evidence led may include evidence not admissible at the subsequent trial. On the other hand a fair and accurate report will necessarily be confined to a summary of evidence and submissions based on the evidence. Nevertheless it would be a mistake to draw too much from the fact that reports of committal proceedings do not constitute contempt because these reports give effect to another public policy, namely that such proceedings should be reported. Indeed, it is argued in favour of the public reporting of committal proceedings that publicity dispels inaccurate rumour and speculation and may induce citizens who are able to give relevant evidence to come forward. The Australian Law Reform Commission has recently questioned the absoluteness of this policy and has recently recommended that committing magistrates should have a power to make suppression orders (Australian Law Reform Commission, Report No. 35, Contempt (1987)).

22. Be this as it may, the reporting of committal proceedings is an example of the reporting of public affairs, notwithstanding that the publication of the report may cause prejudice to the accused at his trial by prejudicing the minds of potential jurors in relation to the issues to be determined at the trial. Reports of court proceedings are not a true example of the public interest in the administration of justice yielding to the public interest in freedom of discussion. Rather it is a case where on balance the wider interests of the administration of justice are thought, as the law currently stands, to be better served by allowing publicity. In passing I should mention that reports of committal proceedings do not come within the conception of "interference with the fair trial" of which Lord Reid was speaking in Times Newspapers (at p.296). His Lordship was referring to instances of direct interference with a fair trial, where the interference is almost certainly intended.

23. No doubt there will be other occasions, apart from reports of the proceedings of Parliament and the continuation of discussion of a matter of public interest commenced before the institution of proceedings, when the balancing approach requires that the public interest in the administration of justice should give way to the public interest in freedom of discussion. The discussion of a major constitutional crisis or of an imminent threat of nuclear disaster are illustrations with overriding claims which immediately leap to mind. But this concession is a fragile foundation for the conclusion that once any topic of public concern or interest is identified, the public interest in the administration of justice must give way to discussion of that topic, provided that the likelihood of prejudice to pending litigation is no more than unintended and incidental to the discussion of the topic of public concern or interest.

24. The question whether a person, like Father Glennon, against whom charges of child molestation are pending, should be permitted to retain a responsible position in charge of children is a matter of high public importance. Yet its importance is not so fundamental and paramount as to entail a disregard of the essentials of a fair trial. No doubt Father Glennon's prior convictions for similar offences reinforced the case for suspending him from his office with the Foundation and made his continuation in office the more reprehensible. But the public interest in free discussion and in alerting the community to the risk inherent in that continuation does not warrant a desertion of the public interest in securing a fair trial for Father Glennon. The public interest in free discussion and in alerting the community to the risk does not require disclosure of prior convictions with the prejudice that it is likely to cause to a fair trial.

25. Where the topic of public discussion is removed from, or far more comprehensive in its reach than, the subject-matter of the litigation the risk of prejudice to the litigation arising from the publication is generally slight. Reference to the litigation which is merely incidental to the discussion is unlikely to occasion a substantial risk of prejudice. But where the topic of public discussion is closely related to the subject-matter of the litigation the risk of prejudice may very well be substantial. Take, for example, public discussion or denunciation of incompetence and manipulation by the police in their investigation of a serious crime. Ventilation of the alleged abuse which was incidental, though central, to the discussion might entail detailed references to the evidence in advance of the trial of an accused person. This might occasion very serious prejudice to the Crown or to the accused. Obviously, a balance between free press and fair trial would require that the public discussion be suspended until completion of the trial.

26. Where the public interest in the administration of justice does not yield to a superior public interest, the balancing approach should protect the administration of justice from any substantial risk of serious interference. The application of a test in this form would best reconcile the conflicting demands for a free press and for a fair trial (see BLF, at p.99). In this formulation the adjective "serious" is essentially emphatic, so that I would be prepared to accept the test of "real risk" of interference stated by Gibbs C.J. (at p.60). To my way of thinking such a test balances more appropriately the competing considerations than a principle which speaks of a publication having a tendency to prejudice a fair trial (see McRae, at p.371) or a publication which is calculated to prejudice a fair trial (Davis v. Baillie (1946) VLR 486, at p 494). These tests are open to criticism on the ground that they may be uncertain and may tend to give too much weight to the protection of the administration of justice at the expense of freedom of discussion (see Australian Law Reform Commission, Discussion Paper No. 26, Contempt and the Media, (1986) pars.52 and 53; Report No. 35, Contempt, pars.288 et seq.). So much was implicitly recognized in McRae where Dixon C.J., Fullagar, Kitto and Taylor JJ. emphasized (at p.370) that the summary jurisdiction to punish contempt should be exercised:

"... only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case".

The emphasis on "as a matter of practical reality" may well, and probably does, eliminate the objection. Similar comments might be applied to the test, enunciated by Jordan C.J. in Ex parte Auld; Re Consolidated Press Ltd. (1936) 36 SR (NSW) 596, at p 597, "a tendency to interfere substantially with a fair trial". These formulae are synonymous or virtually synonymous with "substantial risk of serious interference" with a fair trial.

27. In assessing whether a particular publication presents a real risk of serious prejudice to a fair trial, that is, serious injustice, it is necessary to ascertain whether the references to the subject-matter of the litigation are central or merely incidental to the topic of public discussion. If the references to an issue in the litigation are central to the discussion the likelihood of prejudice or serious prejudice is all the stronger. If, however, the references to the litigation are merely incidental, in the majority of cases there is unlikely to be a real risk of prejudice to the litigation.

28. Whether a particular publication amounts to a contempt in the sense just discussed depends upon a number of factors. They include the nature and the extent of the publication, the mode of trial (whether by judge or jury) and the time which will elapse between publication and trial. The significance of these matters has been examined in the decided cases so that they need no elaboration. However, I should mention some aspects which are relevant to the present appeals. The first is that the courts have always taken a serious view of any published disclosure of the prior conviction of a person accused of a criminal offence when proceedings for that offence are pending. This is because a prior conviction is not admissible evidence of a person's guilt of the offence with which he is charged: Maxwell v. The Director of Public Prosecutions (1935) AC 309, at p 317; Davis v. Baillie, at p 496; Attorney-General (N.S.W.) v. Willesee (1980) 2 NSWLR 143, at p 149. Yet knowledge of a prior conviction is likely to prejudice a jury against an accused person and induce a jury to conclude that he had a propensity to commit the offence charged. For this reason the acquisition by a jury of knowledge of a prior conviction of the accused is usually regarded as causing such prejudice that the trial is invalidated thereafter: Willesee, at p.149.

29. In the present case Mr Hinch in each of his three broadcasts made reference in a dramatic way to the fact that Father Glennon had been convicted in 1978 of indecent assault for which he had received a prison sentence. The impact of this disclosure gained added force from the circumstances that in the broadcasts it was associated with the statement that Father Glennon had been recently charged with the twelve current offences of child molestation, said to have been committed between 1975 and 1982. And in the first and third broadcasts there was the additional reference to the charges of rape in 1984 on which Father Glennon was acquitted. The disclosure of the prior conviction was in this context strongly suggestive of Father Glennon's guilt of the current offences charged or some of them at least. The broadcasts expressed in colourful language were likely to evoke the response "where there is smoke, there is fire".

30. The second comment relates to the appellants' challenge to the comment of Young C.J. that Mr Hinch could have made his point effectively without referring to Father Glennon's prior convictions. The submission, based on the remark of Lord Diplock in Attorney-General v. English (1983) 1 AC 116, at p 143, is that it is not for the court to take into account the question whether the publication might have been expressed as effectively in a different form. My response to this submission is that Lord Diplock was stating that the test under s.5 of the Contempt of Court Act 1981 (U.K.) is whether the risk of prejudice is "merely incidental to the discussion" and that this test does not accurately reflect the common law in Australia.

31. Although s.5 echoes in some respects the fourth sentence in the passage quoted from Jordan C.J.'s judgment in Bread Manufacturers, the section has a different operation. It specifically refers to "the risk of impediment or prejudice to particular legal proceedings" and, subject to the qualification mentioned in the section, it protects the publication if that risk is "merely incidental to the discussion". Jordan C.J. had merely referred to the possibility, or some likelihood, of prejudice, without relating it to particular legal proceedings and he had referred to the risk as "an incidental but not intended by-product", not as being incidental to the discussion. Although it has been suggested that s.5 merely gives effect to the antecedent common law (see Attorney-General v. News Group Newspapers Ltd. (1987) 1 QB 1, at p 13), I do not consider that, as it has been interpreted, it should be regarded as reflecting the common law in Australia.

32. Appropriate as Lord Diplock's approach may be to s.5 of the United Kingdom statute, there is no place for that approach when an Australian court is called upon to decide whether a particular publication presents a substantial risk of serious interference with a fair trial. Our courts have consistently had regard to the fairness or the unfairness of the statements and comments published in deciding whether there has been a contempt or punishable contempt. The judgment of Fullagar J. in Davis v. Baillie (at pp 494-497) is instructive. There his Honour concluded that two of the articles in question went beyond "what is proper or legitimate" (at p.495) because the language used suggested that the accused had committed offences of robbery under arms and housebreaking, as well as the offences on which his trial was then pending. But his Honour acknowledged that the press were entitled to describe fully the pursuit and arrest of the accused and the circumstances leading up to and accompanying the pursuit, including housebreakings which occurred in that pursuit "and to display such news as prominently and with such appropriate headlines as editorial staffs thought fit" (p.495).

33. In the light of the foregoing examination of the law of contempt I turn now to consider the finding made by the Full Court of the Supreme Court that the three broadcasts made by Mr Hinch constituted contempt or punishable contempts. The primary judge found that each broadcast had a real and appreciable tendency from a practical point of view to prejudice listeners against Father Glennon and to influence his forthcoming committal proceedings and trial in a manner adverse to him. In expressing his finding as he did, the primary judge applied the principles as stated in McRae (at pp.370, 372). In the Full Court Kaye J. accepted that the principles were correctly stated in McRae. Young C.J. applied the test as stated by Gibbs C.J. in BLF (at pp.56, 60) which he rightly regarded as consistent with McRae and supported by the comments made in BLF by Brennan J. (at p.166) and myself (at p.99).

34. The primary judge found that the three broadcasts had an audience of 200,000 listeners, of whom approximately 100,000 were in the Melbourne area from which the jurors at Father Glennon's trial would be drawn. The primary judge went on to find:

"In my opinion the broadcasts, and each of them, would have influenced most listeners to conclude that Glennon was a despicable man, a dissembling priest, who corrupted young people after using his pseudo-clerical position to gain their trust.

A strong feeling of hostility towards Glennon

must, in my opinion, have been created. Reference is made ... to his prior conviction and gaoling, to his prior acquittals on similar charges, and to at least the possibility that many other offences had been committed but never seen the light of day ..."

His Honour later found:

"... such statements concerning a Catholic priest in Victoria will be likely to make a lasting impression upon the minds of those listening to the broadcasts, who are ordinary reasonable members of the community, and perhaps especially upon the minds of those with strong religious beliefs, whether of Catholic or of some other persuasion ...

Even if the detail of Glennon's prior criminal history as stated or as insidiously insinuated, was not remembered by Mr. Hinch's 100,000 listeners in the metropolitan area, of whom a large number would be potential jurors at his trial, yet in my view the poisonous effect of the message would be very likely to remain ready to be re-livened or re-awakened when evidence at his trial is led."

35. I agree with the central thrust of the passages which I have just quoted. There were repeated disclosures of Mr Glennon's prior convictions in a context which unquestionably suggested that he was a sexual predator on children committed to his care. The long list of pending charges, together with the references to charges on which he had been acquitted, would be likely to arouse strong prejudice against him. The suggestion that a person is a child molester inspires in many people a strong feeling of revulsion towards him, particularly when he is a priest who is entrusted with the care of children and the innuendo is, as it clearly was, that he took advantage of that position to gratify his sexual desires.

36. This being so, the primary judge and the majority in the Full Court were fully entitled to reach the clear conviction that the broadcasts constituted a substantial risk of serious interference with the fairness of the trial. It has been said that a broadcast may have a transient impact only on the mind of the listener and that this effect is the more likely as the mind of the listener is continuously bombarded with a never-ending kaleidoscope of sensational and scandalous items of news so that the individual's recollection of each and every item is ephemeral. See BLF (at p 136); Duff v. The Queen (1979) 39 FLR 315, at p 333; 28 ALR 663, at p 677; Attorney-General for New South Wales v. John Fairfax &Sons Pty. Ltd., per McHugh J.A.. Nonetheless, in the light of what I have already said, the strong likelihood is that any juror at Mr Glennon's trial who heard one of the broadcasts would be likely to have a recollection of the substance of it and have a prejudice against him. Even if the atmosphere and the discipline of the trial might tend to concentrate the juror's mind on the determination of the real issues, recollection of the broadcast would pre-dispose the juror to arrive at conclusions unfavourable to the accused. True it is that Young C.J. accepted that the trial might not take place before the expiration of 18 months after Murphy J. dealt with the contempt motions on 22 May 1986, that is two years after the first two broadcasts. Nonetheless the Full Court was fully entitled to conclude that the lapse of time would not eliminate the substantial risk of serious prejudice. Delay is, of course, an important factor to be taken into account in deciding what is the risk of prejudice to a fair trial. The relevance of delay is that it naturally tends to erode the recollection of the listener, the viewer and the reader.

37. For the foregoing reasons the majority in the Full Court was correct in affirming the primary judge's findings that the appellants had committed contempts in the making of the broadcasts and that such findings were justified according to the criminal standard of proof.

38. Like Wilson and Toohey JJ., I consider that the affidavit evidence rejected by the primary judge would not have affected the outcome had it been admitted.

39. I would dismiss the appeals.

WILSON J. The detailed description in the reasons for judgment prepared by Toohey J. of the circumstances surrounding these matters relieves me of any necessity to repeat that history in the same detail. The facts that are immediately relevant may be shortly stated. On 12 November 1985 Michael Glennon appeared in the Preston Magistrates' Court in Victoria charged with twelve sexual offences involving teenage boys. He was released on bail. On 13 November Mr Hinch made the first of the broadcasts the subject of these proceedings. The theme of the broadcasts was specifically related to Mr Glennon and it was this: how can a priest, a non-denominational priest, Father Michael Glennon, continue to hold senior office in a children's youth organization after being gaoled on an indecent assault charge?

2. The substance of the first broadcast was repeated on 15 November 1985. In February 1986 the Attorney-General instituted proceedings against each of the appellants in the Supreme Court of Victoria seeking their conviction and punishment for contempt of court. The notice of motion alleged that the two broadcasts to which I have referred were likely or calculated or had the tendency to prejudice the fair trial of Michael Glennon and to prejudice the due administration of justice. By arrangement, the notice was served on the solicitors for the appellants on 17 February 1986 and was returnable on 19 February. After various adjournments it was ultimately heard in April.

3. In the meantime the committal proceedings with respect to the charges pending against Mr Glennon were arranged for 8 April 1986. Then on 7 March 1986 Mr Glennon was charged with three further offences, one of rape and two of indecent assault on a female. He was released on bail to appear in the Melbourne Magistrates' Court on 8 April 1986. On 11 March 1986 Mr Hinch made a further broadcast in which he repeated the substance of the earlier broadcasts coupled with a statement concerning the further charges. This broadcast formed the basis of a second notice of motion by the Attorney-General issued on 19 March 1986.

4. A verbatim transcript of each of the three broadcasts is set out in an appendix to the reasons for judgment of Toohey J. It is unnecessary to repeat them.

5. The hearing of the Attorney-General's motions proceeded before Murphy J. in April 1986. On 28 May 1986, his Honour, having found both charges proved, imposed on each appellant a fine of $25,000 on the first charge. On the second charge, Mr Hinch was sentenced to imprisonment for six weeks and Macquarie Broadcasting Holdings Limited was fined the sum of $30,000. On appeal to the Full Court, the Court, by majority (Young C.J. and Kaye J., Nicholson J. dissenting), dismissed the appeals against conviction of each appellant in each case but varied the sentences imposed by Murphy J. In the case of the first motion, the fine imposed on each appellant was reduced from $25,000 to $15,000. In the case of the second motion, the sentence of imprisonment imposed upon Mr Hinch was reduced to 28 days and the fine imposed on Macquarie Broadcasting Holdings Limited was reduced to $25,000. Nicholson J. dissented, primarily because he was not satisfied that the broadcasts in question had the necessary tendency to interfere with a fair trial of Mr Glennon.

6. On 13 February 1987 each appellant was granted special leave to appeal from the decision of the Full Court. However, the grant of leave was expressly restricted in important respects, namely that

"such appeal be restricted to the effect of the observations of Chief Justice Jordan in Ex-parte

Bread Manufacturers Ltd.; Re Truth &Sportsman

Limited and Another (1937) 37 SR NSW 242 and the views expressed by the members of this Court in Victoria v. Building Construction Employees' and Builders Labourers' Federation 152 CLR 25 and to exclude any matter relating to:

(a) the question of penalties; and

(b) any argument based on the proposition that the Full Court of the Supreme Court should have applied the practice which is observed in New South Wales, in deferring the hearing of contempt motions until after the determination of the criminal trial".

7. There is no doubt as to the basic circumstance upon which the jurisdiction of a superior court to punish for contempt of court is founded. It is a jurisdiction to be exercised with caution and only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice. The impugned material must exhibit a real and definite tendency to prejudice or embarrass pending proceedings. See John Fairfax &Sons Pty. Ltd. v. McRae (1955) 93 CLR 351, at pp 370, 372; Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 ("the BLF Case"), at pp.56, 99, 166. It is obvious that the weight and importance of the various factors that will be material to a consideration of that question will vary from case to case. Broadly speaking, however, the more important factors will include the following: the content of the publication; the nature of the proceedings liable to be affected, whether they are civil or criminal proceedings and whether at the time of publication they are pending at the committal, trial or appellate stage; the persons to whom the publication is addressed; and finally, the likely durability of the influence of the publication on its audience. The last-mentioned factor will assume greater or lesser relevance depending on when the pending proceedings are likely to be heard. If a hearing is imminent, then it is unlikely that the prejudicial publication will have passed from the memory of those who may have been affected by it. On the other hand, the prejudicial tendency of a radio broadcast may be found to be diminished by reason of the fact that the relevant proceedings are not to be heard for many months. This is a question of fact. Cf. Attorney-General v. News Group Newspapers Ltd. (1987) 1 QB 1. An impugned broadcast may be so sensational in its content as to remain in the memory for a very long time and in such a case the likely time of trial will not prove to be a significant factor.

8. As a result of the limited right of appeal, it was not open to the appellants to challenge the finding in the courts below that the broadcasts had the requisite tendency to prejudice the fair trial of Mr Glennon. Nevertheless, in order to understand the issues that are raised by the appeals it is necessary to set out the substance of the findings of Murphy J., as confirmed by the majority in the Full Court, with respect to the tendency of the broadcasts. Those findings were as follows:

"In my opinion the broadcasts, and each of them, would have influenced most listeners to conclude that Glennon was a despicable man, a dissembling priest, who corrupted young people after using his pseudo-clerical position to gain their trust.

A strong feeling of hostility towards Glennon

must, in my opinion, have been created. Reference is made ... to his prior conviction and gaoling, to his prior acquittals on similar charges, and to at least the possibility that many other offences had been committed but never seen the light of day and it might be implied that such offences perhaps could involve Aboriginal children.

These statements were all extremely

prejudicial and improper and unfair considerations to put before witnesses and potential jurors....

...

I think that it is also likely that witnesses wavering in their resolution as to any value judgment that they might have to make concerning the facts, or entertaining any doubts as to his or her testimony, would be stiffened and fortified adversely to Glennon by the knowledge of the facts of his prior criminal history as stated by Mr. Hinch. They would be far more likely to jump to conclusions."

With respect to the likely duration of their influence, his Honour said:

"I am of the opinion that such statements concerning a Catholic priest in Victoria will be likely to make a lasting impression upon the minds of those listening to the broadcasts, who are ordinary reasonable members of the community, and perhaps especially upon the minds of those with strong religious beliefs, whether of Catholic or of some other persuasion. Again, they would be especially likely to impress themselves on the minds of parents with children, or grandchildren, who are yet to run the gauntlet of growing up in modern teenage society.

Even if the detail of Glennon's prior criminal history as stated or as insidiously insinuated, was not remembered by Mr. Hinch's 100,000 listeners in the metropolitan area, of whom a large number would be potential jurors at his trial, yet in my view the poisonous effect of the message would be very likely to remain ready to be re-livened or re-awakened when evidence at his trial is led."

9. The present appeals require the Court to consider the effect of the observations of Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242. The case concerned civil proceedings. The respondents had published a series of articles dealing with a matter of public interest, namely the organization of the bread trade and the selling price of bread, and critical of the applicant company's activities. Certain of the articles were published after the commencement of an action of libel and conspiracy in which the applicant company was the defendant. The respondents had no knowledge of the existence of the proceedings. A motion to attach the respondents for contempt was dismissed. Jordan C.J. said, at pp.249-250:

"It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.

It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter...."

Two questions arise concerning this passage. The first is whether it has any application to criminal proceedings. The second, assuming an affirmative answer to the first question, is as to the manner in which the principle expressed therein is to be applied to contempt proceedings with respect to the publication of material which has the requisite tendency to prejudice criminal proceedings.

10. In my opinion the first question should be answered in the affirmative, as it was by the Court of Appeal of the Supreme Court of New South Wales in Registrar of the Court of Appeal v. Willesee (1985) 3 NSWLR 650. There is no material distinction between civil and criminal proceedings which would exclude from consideration in a prosecution for contempt of court in relation to criminal proceedings a defence that the prejudicial material was published in the course of a bona fide discussion of a matter of public interest and was no more than an incidental but not intended by-product of that discussion. (I use the word "defence" for convenience, without implying that any ultimate onus of proof rests upon the person charged.) Criminal proceedings can give rise to the same problem of competing public interests as that to which Jordan C.J. refers, and it is the business of the law to reconcile so far as possible those competing interests. Of course, the public interest in the due administration of criminal justice is of a different kind to that involved in civil proceedings. Not only has the community a more direct stake in the former class of proceedings but juries are less likely to be involved in the latter. It follows that the public interest in ensuring that criminal proceedings are conducted free of prejudice will ordinarily attract great weight and make it less likely that the public interest in the freedom of discussion of matters of public importance will outweigh it. It will be recognized, too, that the nature of the prejudice which an offending publication may present to pending proceedings may vary enormously with the content of the publication. The greater the prejudice the less likely is it that its publication will be excused by its presence in the context of a discussion of a matter of public interest, however important. For example, in relation to the pending trial of a public officer charged with bribery, there may be a world of difference between the effect thereon of, on the one hand, a series of articles devoted to a general discussion of suspected improprieties in an area of public administration (but which articles do not name any particular officer), and, on the other hand, a publication which in the course of the same discussion names the officer and details his criminal history: cf. John Fairfax &Sons Pty. Ltd. v. McRae. There can be few disclosures more damaging to a person awaiting trial on a criminal charge than to have his prior convictions made known to the constituency from which the witnesses and jurors involved in his trial may come. It is one of the most "deeply rooted and jealously guarded principles" of the criminal law that evidence of prior convictions shall not be admissible on the trial of a person's guilt or innocence of a criminal charge: Maxwell v. The Director of Public Prosecutions (1935) AC 309, at p 317.

11. I now turn to the second question: how is the Bread Manufacturers principle to be applied? There has been some doubt about that question expressed in recent decisions of the Court of Appeal of the Supreme Court of New South Wales. In Willesee, at pp.682-683, Priestley J.A. distinguished a balancing approach from an approach which required asking whether or not the prejudicial publication was no more than an incidental but not intended by-product of a discussion of a matter of public concern. The latter approach was described as a normative approach, not requiring any balancing exercise but simply a finding on the facts. See also Attorney-General for New South Wales v. John Fairfax &Sons Ltd. and Bacon (1985) 6 NSWLR 695, per McHugh J.A. at p 715. However, in Director of Public Prosecutions v. Wran (1986) 7 NSWLR 616 the Court of Appeal (in a joint judgment of Street C.J., Hope, Glass, Samuels and Priestley JJ.A.) summed the matter up as follows:

"Stemming from the well-known statement by Jordan C.J. in Ex parte Bread Manufacturers

Limited; Re Truth &Sportsman Limited (1937) 37 SR

(NSW) 242 at 249, it has been established by a succession of decisions that in appropriate cases the public interest in the administration of justice may yield to public interest in the ventilation of questions of public concern. The boundaries of this principle have not been and probably will never be defined with precision but it is clear at least that publications directed to the very issue to be decided at a criminal trial, the guilt or innocence of the accused person, could rarely if ever fall within this category: Registrar Court of Appeal v. Willesee (1985) 3 NSWLR 650."

See also Director of Public Prosecutions v. Australian Broadcasting Corporation (1986) 7 NSWLR 588.

12. The order granting special leave to appeal refers to the views expressed by members of this Court in the BLF Case. The circumstances which gave rise to the BLF Case are not material, save to mention that it did not involve any allegation that a contempt of court had been committed. The allegation was of an anticipatory kind, namely, that if a royal commission was permitted to continue its inquiry in public its proceedings would constitute a contempt of court because the publicity attending them would interfere with proceedings then pending in the Federal Court seeking the cancellation of the registration of an organization under the Conciliation and Arbitration Act 1904 (Cth). In the course of his reasons for judgment, Gibbs C.J. said, at p.56:

"The law as to contempts of court of the kind now under consideration reflects two conflicting principles of public policy: on the one hand, the need to safeguard the proper administration of justice and on the other the protection of freedom of speech (and this principle must extend to freedom of inquiry). This question has recently been discussed in Attorney-General v. Times Newspapers Ltd. (1974) AC 273, although similar views had earlier been expressed in New South Wales: Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242, at pp 249-250; Ex parte Dawson; Re Consolidated Press (1961) SR (NSW) 573, at p 575. The law strikes a balance; in the interest of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real prejudice to the administration of justice."

His Honour returned to the subject later in his reasons, at p.60:

"The conclusion reached by the Federal Court was that the adverse effect of the continued public proceedings of the royal commissions upon the judicial proceedings in that court outweighed the public interest involved in having the proceedings of the Commissions continued in public. If their Honours considered that they had a discretion to weigh one consideration against another, and to make a discretionary judgment as to whether a contempt had been committed or was likely to be committed, they were mistaken. The balancing of interests which is mentioned in Attorney-General v. Times Newspapers Ltd. (1974) A.C. 273, at pp.294, 296, 301, 319 is done by the law in formulating the principle to be applied, and not by the Court in deciding a particular case. The resulting principle requires that the court be satisfied that there is a real risk that the material alleged to be a contempt will interfere with the administration of justice in pending proceedings before it can hold that a contempt has been committed or is threatened. The discretion of the court lies in dealing with a contempt, not in deciding whether a contempt has been committed."

Stephen J. said, at pp.74-75:

"His Honour then referred to the tension existing between two distinct public interests, to each of which the law must pay regard: the fair and proper administration of justice and the preservation of open discussion and free access to information. It can, I think, be said that generally these two complement each other: a fair and proper administration of justice provides the only available safeguard of the citizen when freedom of speech is unlawfully denied; and it is only in an open society, where freedom of scrutiny and expression prevails, that justice is likely routinely to be fairly administered. But despite this happy conjunction, individual cases of apparent conflict between these two interests may arise readily enough. They do so in the present case, and his Honour resolved the resultant conflict substantially, but not exclusively, in favour of the fair and proper administration of justice when he enjoined further public hearings of the Commission. He did so only after clearly identifying and carefully evaluating the two important public interests which were involved."

Mason J. (as his Honour then was) said, at p.95:

"The Federal Court rightly recognized that where there is no intent to interfere with the administration of justice the court must weigh up the competing public interests, viz. the public interest in the litigant having his case tried free from all matter of prejudice and the public interest in the exposure of public abuses, the dissemination of information of public importance and in freedom of discussion on these matters. Deane J. (1981) 53 FLR 396, at p.403; 37 ALR 470, at p.476 quoted the well-known comments of Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242, at p 249, cited with approval by Lord Reid in Attorney-General v. Times Newspapers Ltd. (1974) AC 273, at pp 296-297."

See, also, his Honour's comments at pp.98-99. Murphy J. and Aickin J. did not find it necessary to consider the point directly. I engaged in an evaluation of the competing public interests involved in the case. I introduced the discussion by saying, at p.133:

"The necessity of weighing up on the one hand the public interest in preserving the purity of the stream of justice and on the other the public interest in preserving freedom of speech and debate on matters of public concern was recognized by Deane J. and emphasized by his citation of a well-known passage from the judgment of Jordan C.J. in Ex parte Bread Manufacturers Ltd. (1937) 37 SR (NSW) 242, at pp 249-250..."

Brennan J. said, at p.175:

"There is a distinction between a technical contempt and a contempt which moves the court to action, either to enjoin a threatened contempt or the continuance of a contempt or to punish a contempt. There are, as Lord Reid said in the Times Newspapers Case (1974) A.C. 273, at p.298, two questions: '... first, was there any contempt at all, and secondly, was it sufficiently serious to require, or justify the court in making, an order against the respondent?' In answering the second question, there are at least three factors of importance to take into account. The first is the public interest which may be served by permitting the impugned conduct to occur or to continue. In his judgment in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd., (1937) 37 SR (NSW) 242, Jordan C.J. acknowledged the balance which may have to be struck between the public interest to be served in preventing interference with the due course of justice and the public interest to be served by permitting public discussion of matters of public interest."

13. Mention should also be made of an ex tempore statement made by Gibbs C.J., Wilson and Dawson JJ. when refusing special leave to appeal in Waterhouse v. Australian Broadcasting Corporation (1986) 61 ALJR 24; 68 ALR 75. The Court prefaced its decision by saying that the primary judge

"was required to exercise a discretionary judgment, balancing two principles of great importance - on the one hand, the need to ensure that an accused person should not be prejudiced in his trial, and on the other hand, the need to ensure that the public discussion of matters of public concern is not stifled."

The primary relief sought in Waterhouse was an injunction to restrain the Corporation from televising a current affairs programme which, if shown, would allegedly carry a real and substantial risk of prejudice to the fair trial of Waterhouse on criminal charges then pending.

14. As I have said, the issue which requires determination in these appeals is whether a publication which prima facie would constitute a contempt of court deserving of punishment will escape that categorization if the court concludes that the damage to the public interest in the due administration of justice that is threatened or occasioned by the publication is outweighed by the public interest in the public ventilation and discussion of a matter of public concern. I have deliberately stated the issue in terms of a prima facie contempt deserving of punishment because, in my opinion, it goes to the heart of the problem and renders unnecessary a detailed discussion concerning the distinctions which might be drawn between the statements made by different members of the Court in the BLF Case. This approach accommodates the position taken by Stephen, Mason and Wilson JJ. with the distinction drawn by Brennan J. between a technical contempt and a contempt deserving of punishment (cf. Bacon, per McHugh J.A., at p.708), and it allows emphasis to be given to the place accorded by Gibbs C.J. to the discretion of the court when dealing with a contempt.

15. So stated, I think that on the authority of the BLF Case the issue can be resolved with some confidence. In an appropriate case the court is empowered to entertain a defence of discussion of a matter of public interest and in doing so to engage in a balancing exercise to determine which of the competing matters of public interest should prevail.

16. But it is important to emphasize that in undertaking a balancing exercise the court does not start with the scales evenly balanced. The law has already tilted the scales. In the interest of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real and substantial prejudice to the administration of justice: BLF Case, per Gibbs C.J. at p.56. In Bread Manufacturers Jordan C.J. was prepared to excuse a publication likely to prejudice a person who happened at the time to be a litigant if it is occasioned "as an incidental but not intended by-product" of a discussion of public affairs. Counsel for Mr Hinch urged the Court to disregard that qualification as forming no part of the statement of principle and explained it as germane merely to the facts of the particular case. I can see no warrant for doing so. The phrase was emphasized by Mason J. in the BLF Case, at p.95, when citing the statement of Jordan C.J. (and also indirectly by Lord Simon of Glaisdale in Attorney-General v. Times Newspapers Ltd. (1974) AC 273, at p 321). See, also, Borrie and Lowe's Law of Contempt, 2nd ed. (1983), pp 116-117. In my opinion, the qualification forms an integral and important part of the principle enunciated by the Chief Justice. I favour its characterization as one of the factors to which regard may be had in carrying out a balancing exercise rather than its adoption as a rigid criterion the presence of which would automatically lead to a conclusion. One cannot rule out the possibility that an incidental and not intended by-product of a discussion of a matter of general concern may nevertheless exhibit so strong a tendency to prejudice pending criminal proceedings as to warrant punishment for contempt. Conversely, the fact that a publication cannot be excused as an incidental and not intended by-product of such a discussion does not necessarily lead to a finding of punishable contempt.

17. A limited parallel may be drawn with s.5 of the Contempt of Court Act (1981) (U.K.). That section reads:

"A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion."

The section, together with certain other sections, was described by Lord Diplock in Attorney-General v. English (1983) AC 116, at p 139, as dealing

"with the publication to the public or a section of the public of matter which tends to interfere with the course of justice in particular legal proceedings, and they seek to hold the balance between the competing public interest of what American lawyers pithily described as 'fair trial and free press'."

18. In my opinion, the decision whether to punish conduct alleged to constitute a contempt of court must depend, in the last resort, on the intention of the person charged and the nature and extent of the interference with the fair conduct of the legal proceeding. If the interference is intended and would otherwise justify condemnation by the court, there can be no question of any defence based on a submission that the publication in question was made in the course of a discussion of a matter of public importance. If the interference was unintended, and occurred in the course of discussion of a matter of public importance, then a balancing exercise will be appropriate. If the pending proceedings are central to the discussion then it is unlikely that the interference can be excused as incidental or that any matter of public interest may excuse it. Even if not central, the seriousness of the interference may outweigh any public interest in the freedom to discuss the matter. For example, if the media prejudges issues to be litigated in a proceeding (e.g., as in Director of Public Prosecutions v. Australian Broadcasting Corporation) or canvasses the evidence so as to engage in a trial by media, this would be likely to so embarrass the fair trial of the proceeding as to bring the scales down heavily in favour of a finding of punishable contempt. Similarly with exposure of the criminal record of a person awaiting trial of a criminal offence. Of course, there are some respects in which the law has already decreed a freedom to the media to publish prejudicial material; for example, in the freedom to publish fair reports of preliminary court proceedings, including bail applications and committal proceedings. But this freedom is strictly circumscribed, reflecting the strength of the law's concern to protect the due administration of justice from unjustifiable interference. Generally speaking, it is for a court, in determining whether impugned conduct should be condemned and punished as a contempt of court, to engage in a balancing exercise between competing public interests. Nevertheless, the law provides guidance of the kind I have indicated in determining the relative weight to be accorded to the factors which in a particular case may require consideration.

19. It should be emphasized that the law as I have expounded it does not leave editors and publishers at the mercy of discretionary decisions of individual judges. Notwithstanding the reference in Waterhouse to "discretionary judgment" - a phrase used by the Court when refusing the application for special leave to appeal - a decision which is the outcome of the balancing process is not a discretionary judgment. It is the result of an evaluation, consistently with accepted judicial principle, of competing matters of fact. The criminal justice system supplies a number of situations where a similar process takes place; for example, the evaluation of negligent conduct causing death to determine whether the negligence is so gross as to justify a verdict of manslaughter, or the consideration of a defence of provocation to a charge of murder. These are not discretionary decisions, any more than the decision whether a publication which would otherwise constitute a contempt of court is saved from punitive consequences because of the circumstances in which it occurred. If the court is left with any reasonable doubt about the answer to that question then of course the prosecution will fail.

20. It remains to consider in a little more detail the effect of a significant delay between the impugned publication and the likely date of trial of the proceeding. It was submitted for the appellants that delay was a significant factor in this case and that the Court should proceed on the basis that at the time of each broadcast it could be expected that at least ten months were likely to elapse before the trial of Mr Glennon would take place. It was argued that, given the transient hold on the mind of the listener that could be expected of information conveyed in a radio broadcast, the effect of such a lapse of time was to lessen the prejudice that might otherwise flow from the broadcast. As I have said, the lapse of time between publication and trial is a factor which is relevant primarily to the question whether the publication has the requisite tendency to prejudice a fair trial and might therefore be thought to be excluded from consideration by the terms of the grant of special leave. However, it was submitted by Counsel that the likely lapse of time is also relevant to the balancing exercise which is required to be undertaken in the present case. I am prepared to accept the submission. If it is appropriate to undertake a balancing exercise then all the circumstances should be considered, including the circumstances which tell for or against the seriousness of the likely interference which the publication offers to the administration of justice. The anticipated lapse of time before trial may be a factor which so diminishes, while not itself erasing, the likely prejudice of a publication as to enable the defence of discussion of a matter of public interest to succeed in raising a reasonable doubt in circumstances where if the trial was imminent it would not have done so. In the BLF Case several members of the Court mentioned the likely lapse of time between the proceedings of the royal commissions and the hearing of the application for de-registration in the Federal Court as a relevant factor in their consideration of the matter. Nevertheless, in the present case I do not consider that the likely lapse of ten months between the broadcasts and the trial of Mr Glennon is of sufficient weight to assist the appellants. In the first place, it overlooks the fact that the committal proceeding was set to take place in April 1986 and the material broadcast was such that it might affect the witnesses who were to give evidence in that proceeding. Secondly, I accept the views expressed by the learned trial judge as to the durability of the prejudice likely to be occasioned by the broadcast. The nature of the programme, the sensational character of the information disclosed and the fact that it was published on three occasions over a period of four months provide support for his Honour's conclusion.

21. I have given careful consideration to the submissions advanced for the appellants as to the importance of the matter of public interest about which Mr Hinch felt so deeply and the cause which he had served so well in the past. Nevertheless, I am constrained to resolve these appeals against the appellants. The broadcasts were occasioned by the charges laid against Mr Glennon and they dealt solely with him and his antecedents. They disclosed matters of criminal record and suspicion which would not have been admissible at the trial and which if known to the jurors, and perhaps to the witnesses, would render a fair trial well nigh impossible. Moreover, in my opinion, the tenor of the broadcasts and in particular Mr Hinch's repeated statement that

"I know the question police are asking is how many other children may have been involved, how many other children may have been too scared over the years to come forward"

carried a clear implication of Mr Glennon's guilt on the pending charges. I see no reason not to accept the following summation by Murphy J.:

"They (the broadcasts) held Glennon up to public obloquy, they vilified him at a time when charges were known by Mr. Hinch to be pending against him and they had in my opinion the effect of creating a real risk of prejudice to Glennon's fair trial by effecting the pre-judgment of witnesses and jurors at his committal and trial respectively."

The prejudicial disclosures were not "an incidental but not intended by-product" of a discussion on a matter of public interest. The pending proceedings were central to the discussion. Even if they were thought not to be central to the topic under discussion, the seriousness of the interference outweighed any public interest touching the matter; nothing can be derived from the matter of public interest about which Mr Hinch was genuinely concerned which could possibly outweigh the real and substantial risk of prejudice to the administration of justice that the broadcasts carried. There was no justification for Mr Hinch to pursue his public interest objective in the way he did. He could have largely achieved his purpose by seeking to have Mr Glennon stand down from his position in the Peaceful Hand Youth Foundation pending the determination of the charges which he faced (cf. Re Attorney-General for Manitoba and Radio OB Ltd. (1976) 70 DLR (3d) 311, at p 319).

22. Reference must be made to a further ground of appeal, namely, that evidence sought to be tendered on behalf of the appellants was wrongly rejected by the learned trial judge. The material in question was before the Court on the hearing of these appeals and was the subject of submissions by counsel for the appellant Macquarie Broadcasting Holdings Limited. I find it unnecessary to consider the admissibility of that evidence because even if it had been admitted, in my opinion it could not have affected the outcome of the case.

23. I would dismiss the appeals.

DEANE J: Under the common law of this country, there are several distinct categories of contempt of court. This case is concerned with contempt by publishing material in circumstances where the publication tends to prejudice the fairness of particular legal proceedings. The relevant facts and the text of the three separate statements about Father Michael Glennon ("Glennon") published over Radio Station 3AW (Melbourne) are set out in the judgment of Toohey J. It is unnecessary that I repeat them. It is convenient to indicate at once what I see as the applicable principles of law.

2. The publication of material in circumstances where the clear tendency of the publication is to preclude or prejudice the fair and effective administration of justice in particular pending legal proceedings constitutes contempt of court unless, as a matter of weighing competing public interests, the detriment of the possibility of prejudice to the administration of justice is outweighed by other identified factors such as the public interest served by freedom of discussion of matters of public importance and by the exposure of public dangers and abuses (Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F. Case") (1982) 152 CLR 25; Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242, at pp 249-250). While the act of publication must be intentional, an intention or purpose of prejudicing the due administration of justice is not an essential ingredient of this type of contempt of court (John Fairfax &Sons Pty. Ltd. v. McRae (1955) 93 CLR 351, at p 371). The "critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important" (per Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ., Lane v. Registrar of Supreme Court of N.S.W. (1981) 148 CLR 245, at p 258 and see, generally, Registrar of the Court of Appeal v. Willesee (1985) 3 NSWLR 650, at pp 658 (Kirby P.) and 673-676 (Hope J.A.)). Thus, a finding that the publication in fact has a clear tendency to prejudice the due administration of justice may well, particularly in the context of the criminal onus of proof (see below), be more readily made in a case where the conduct was engaged in for that very purpose than in a case where any such interference would be but an unintended and incidental side effect. In referring to a publication having a "clear tendency" to interfere adversely with the due administration of justice, I have intended to convey no more than that the publication must reveal such a tendency "as a matter of practical reality" (see John Fairfax &Sons Pty. Ltd. v. McRae, at p 370). What is required is that the nature and circumstances of the publication are such that it can be plainly discerned that there is a "real and definite possibility" that it may "prejudice the administration of justice" (see Attorney-General for New South Wales v. John Fairfax &Sons Ltd. &Bacon (1985) 6 NSWLR 695, at pp 697-698 (Samuels J.A.)).

3. The formulation of principle in the first sentence of the preceding paragraph essentially reflects the approach accepted by three of the four justices who constituted the majority of the Court in the B.L.F. Case (Mason J. (at pp.95-100), Wilson J. (at pp.133-137) and Aickin J. who indicated (at p.119) his agreement with Wilson J. on this aspect of the case), namely, that the second limb (i.e. not outweighed by competing public interests) is an integral part of a description of this category of contempt (see, also, Attorney-General v. Times Newspapers Ltd. (1974) AC 273, at p 302 (per Lord Morris of Borth-y-Gest) and, as to the absence of any continuing rationale for distinguishing between "punishable" and "non-punishable" contempt, Attorney-General for New South Wales v. John Fairfax &Sons Ltd. &Bacon, at pp 707-708 (McHugh J.A.)). An alternative approach, which was favoured by some members of the House of Lords in the Times Newspapers Case (see, in particular, the speeches of Lord Reid (at pp.298-299, 301) and Lord Diplock (at pp.311-312)) and by Gibbs C.J. (at p.60) and Brennan J. (at pp.175-177) in the B.L.F. Case, is that the second limb of the description is concerned not with the identification of what technically constitutes this category of contempt but with a subsequent balancing exercise involved in determining whether conduct which constitutes (or would, if engaged in, constitute) contempt of court should be punished (or enjoined). The B.L.F. Case cannot properly be seen as finally determining which of those approaches is to be preferred since neither Stephen J. nor Murphy J. expressed any clear view in that regard (see, also, the comments of Hope J.A. in Registrar of the Court of Appeal v. Willesee, at p 676 suggesting that Aickin J's expression of agreement with the judgment of Wilson J. had a more limited scope than that which I have attributed to it). No doubt because of the restrictions upon the grant of special leave to appeal, the implications of the distinction between the two approaches were not fully investigated in argument. As will appear, the effect of the conclusions which I have reached is that the present appeals against conviction must be dismissed regardless of which approach is adopted. In these circumstances, I have accepted the more demanding two-limbed description of contempt of court (i.e. that favoured by Mason, Aickin and Wilson JJ. in the B.L.F. Case) for the purposes of this judgment without forming a concluded view about the comparative merits of the alternative approach.

4. There was, in the course of argument, some debate about whether the second limb of the above description of contempt of court by publication is, in any event, not applicable to a case where the pending proceedings are criminal. There is something to be said for the view that the fair administration of criminal justice is of such fundamental importance to the social compact underlying a democratic society that a publication which has a clear tendency to interfere with it adversely could never be justified by countervailing public interest considerations. Upon balance however, it seems to me that the preferable view is that which was implicit in the judgment of Dixon C.J., Fullagar, Kitto and Taylor JJ. in John Fairfax &Sons Pty. Ltd. v. McRae, at p 372 and which was favoured by the members of the New South Wales Court of Appeal in Registrar of the Court of Appeal v. Willesee (at pp 659-660, 677-680, 681-682), namely, that the second limb of the description applies regardless of whether the pending proceedings are civil or criminal. Obviously, however, the nature of the pending proceedings in relation to which the publication is likely to prejudice the fair and impartial administration of justice will be an important, and sometimes decisive, factor in the weighing of competing public interests.

It's an organisation incorporated with the Victorian Government, a voluntary organisation with six branches, including a young offenders correction service -- well, having been in jail, he could give advice on that -- the Images Theatre Company and the karate club.

Up to 1,000 children, aged six and upwards, are involved with those clubs. At a meeting, I am told, on Wednesday night, representatives of the parents' council, the teachers' council, the central executive and the black belt karate council all expressed their unanimous support for and confidence in Father Glennon.

Glennon will remain as Governing-Director of the Peaceful Hand Foundation and we have had that confirmed. We've confirmed that with the Foundation's Secretary, Mrs. Vicki Dickerson. That is, despite a jail sentence for indecent assault, the man will stay in that position.

Father Glennon has told us he has made complaints to the State Ombudsman and to the Police Bureau of Internal Investigation. He told Pamela Graham, and I quote: 'I abhor that police of Preston CIB have waited so long to act on allegations made up to 15 months ago without telling me; I abhor that police did not attempt to show me any corroboration of ancient charges dating back to 1975; I abhor the fact that police confiscated all my personal diaries and the Foundation's photo albums, videotapes and files and information that would assist me to say where I was at what time and with whom,' end quote.

All I can say is it goes back to the question, the question I said I know police are asking, a question, as I said, I think all reasonable, thinking adults will be asking in Victoria, how can a priest, a non-denominational priest, Father Michael Glennon, continue to hold senior office in a children's youth organisation after being jailed on an indecent assault charge?"

Broadcast - 11 March 1986

" Late last year on this programme I asked a question: how can a Catholic priest, now calling himself a non-denominational priest, continue to hold senior office in a children's youth organisation after being jailed on an indecent assault charge involving children?

The priest is Father Michael Glennon, aged 41, of Harold Street, Thornbury. He is the Governing Director of the Peaceful Hand Youth Foundation based in Ballarat Street, Lalor. It is an organisation incorporated with the Victorian Government. In fact, the organisation has received money in grants from the State Government.

The Peaceful Hand Youth Foundation, founded by Father Glennon, has six branches apparently, including a Young Offenders Correction Service, the 'Images' Theatre Company and the Karate Club. Up to a thousand children, aged six and upwards, are involved in the clubs. The foundation runs a camp for kids at 'Karaglen' at Lancefield.

Glennon was charged with sexual assault and jailed in 1978. He appeared in Melbourne County Court in 1978, charged with rape and indecent assault. Police did not proceed with the rape charge, and on the indecent assault charge he was found guilty and sentenced to two years' jail, with a minimum of 12 months to serve.

The same priest was then charged in the Melbourne County Court in September '84 with two counts of rape of a 12-year-old boy, and on those charges he was acquitted.

As I said last year, I know the question police have been asking is how many other children may have been involved, how many perhaps (were) too scared to come forward?

And the question I have to ask -- and I'm sure you, every reasonable-thinking adult asks along with me -- how does a man come to be able to continue to run a youth foundation, to take children into his care in youth camps?

Now, in November, at a meeting ... at a meeting of representatives of the Parent's Council, the Teachers' Council, the Central Executive and the Black Belt Karate Council, all expressed their unanimous support for Glennon, and the Foundation Secretary, Mrs. Vicky Dickerson, confirmed that Glennon would remain as Governing Director of the Peaceful Hand. Mrs. Dickerson, it turns out, happens to be Mr. Glennon's cousin.

And the footnote, and where all of this is leading to this morning, last Friday Catholic priest Father Michael Glennon, founder and Governing Director of the Peaceful Hand Youth Foundation, was charged with rape and indecent assault.

Glennon was charged with one count of rape and two counts of indecent assault. He was granted bail on his own undertaking to appear in the Melbourne Committals Court on Tuesday, April 8. My original question remains."

GAUDRON J. Mr Derryn Hinch ("the first appellant") is a radio journalist. He has a regular programme on Radio Station 3AW in Melbourne. The station is owned and operated by Macquarie Broadcasting Holdings Limited ("the second appellant"). Each of the appellants was convicted on two charges of contempt of court. The first charge related to two broadcasts made on 13 and 15 November 1985. The second charge related to a broadcast made on 11 March 1986. The texts of those broadcasts are annexed to the judgment of Toohey J. The Full Court of the Supreme Court of Victoria (Young C.J., Kaye J., with Nicholson J. dissenting) upheld the convictions, but reduced the penalties imposed at first instance by Murphy J. The present appeals are limited, by the terms in which special leave to appeal was granted, to a consideration of "the effect of the observations of Chief Justice Jordan in Ex-parte Bread Manufacturers Ltd.; Re Truth &Sportsman Limited and Another (1937) 37 SR NSW 242 and the views expressed by the members of this Court in Victoria v. Building Construction Employees' and Builders Labourers' Federation 152 CLR 25 ...".

2. The broadcasts dealt with the subject of child molestation. They examined the appropriateness of employing a person who has been convicted of a sexual offence in a position of authority in an organization providing activities and pastoral care for young persons, and also addressed the question of that person's continued employment pending the hearing of charges of further sexual offences against young people. However, the broadcasts had a particular focus. That focus was Father Michael Glennon, the Governing Director of the Peaceful Hand Youth Foundation Pty Limited. Father Glennon had been ordained as a Catholic priest, but was not at the time attached to any parish and held no other position in the Catholic Church. He described himself as a "non-denominational priest".

3. On 12 November 1985, Father Glennon appeared in Preston Magistrates' Court charged with a number of sexual offences against teenage boys. He was remanded on bail pending committal proceedings which were listed to be heard in Melbourne Magistrates' Court on 8 April 1986. In his programme on 13 November 1985, the first appellant reported these matters, and in that context revealed that:

"Father Michael Glennon appeared in the Melbourne County Court in 1978 charged with rape. However, when he pleaded guilty to indecent assault of a 16-year-old girl, police did not proceed with the rape charge.

On the indecent assault charge, Father Glennon was found guilty and sentenced to the two years' jail with a minimum of 12 months to serve. The same priest was then charged in the Melbourne County Court in September of 1984 with two counts of rape of a 12-year-old boy. On those charges he was acquitted."

The first appellant proceeded to pose these questions:

"... how many other children may have been involved, how many other children may have been too scared over the years to come forward."

"... how does a man come to be able to continue to run a youth foundation with that background? How does a man continue to be able to take children into his care and take children in his care to youth camps, when he has a criminal record, a sexual criminal record involving juveniles?"

and

"... the main question, is he still involved with the Peaceful Hand Youth Foundation?"

4. The first appellant returned to this subject in his broadcast of 15 November 1985. He again reported that Father Glennon had been charged "on 12 counts of molestation of teenage boys, dating back to 1975." On four occasions during the broadcast, reference was made to Father Glennon having previously served a gaol sentence. The last reference was contained in the question:

"... how can a priest, a non-denominational priest, Father Michael Glennon, continue to hold senior office in a children's youth organisation after being jailed on an indecent assault charge?"

5. On 7 March 1986, Father Glennon was charged with further counts of rape and two counts of indecent assault. The charges related to events alleged to have occurred between July and November 1982. He was granted bail on his own recognizance to appear in the Melbourne Magistrates' Court on 8 April 1986, the date fixed for the committal hearing of the offences with which he had been charged on 12 November 1985. This prompted the first appellant to make a third broadcast, in which he again canvassed Father Glennon's previous conviction and acquittal and in which he again posed a number of questions:

"... I know the question police have been asking is how many other children may have been involved, how many perhaps (were) too scared to come forward?"

and

"... how does a man come to be able to continue to run a youth foundation, to take children into his care in youth camps?"

6. The appellants contend that they are not guilty of contempt, because the first appellant was engaged in the discussion of a matter of public importance. They rely on the statement by Jordan C.J. in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd ("Bread Manufacturers") (1937) 37 SR (NSW) 242, at p 249 that:

"It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant."

7. That statement was considered by this Court in John Fairfax &Sons Pty Ltd v. McRae (1955) 93 CLR 351 and approved in Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F. Case") (1982) 152 CLR 25, at pp 59-60, 95, 133-134.

8. Two questions arise in the present appeal. Does the principle enunciated in Bread Manufacturers apply to conduct which prejudices criminal proceedings? If so, how is the principle to be applied? The answers to both questions depend, in my view, upon the acceptance of the proposition that the dissemination of information relevant to the workings of an open, democratic society may, in both abstract evaluation and in relation to particular cases, take precedence over the public interest in protecting the administration of justice from the risk of interference. In Attorney-General for New South Wales v. John Fairfax &Sons Ltd and Bacon (1985) 6 NSWLR 695, McHugh J.A. noted (at p 714) that the public interest in open justice usually takes precedence over the public interest in "the fair and unprejudiced trial of criminal and civil issues." Thus it is not contempt to publish a fair and accurate report of bail proceedings, notwithstanding that the report may involve matters which could cause prejudice to the subsequent trial of the person making the bail application: see the B.L.F. Case, per Wilson J. (at p.132) and Minister for Justice v. West Australian Newspapers Ltd (1970) WAR 202, per Jackson C.J. (at p 207). McHugh J.A. also observed (at p 714) that "it can hardly be argued that a fair and accurate report of proceedings of Parliament, if made in good faith, constitutes an unlawful interference with the course of justice." He added that "(t)he public interest in the administration of justice must also give way on occasions to the public interest in the discussion of public affairs and the provision of information which is vital to the working of an open and democratic society ...". In those passages, McHugh J.A. pointed to matters of public interest which I would respectfully adopt as illustrative (if not necessarily exhaustive) of matters which take precedence over the public interest in protecting the administration of justice from risk of interference. I would identify such matters as the maintenance of our democratic processes, and the maintenance of a free and open society, the latter concept including the open administration of justice. These are matters of fundamental importance. Their nature is such, in my view, that in appropriate circumstances they may outweigh the public interest in protecting the administration of justice from risk of interference, even in relation to criminal trials. For this reason, I am of the view that the principle in Bread Manufacturers extends to conduct which constitutes a risk of interference to criminal trials.

9. There has been some uncertainty as to the manner in which the principle in Bread Manufacturers should be applied. In the B.L.F. Case Gibbs C.J. (at p.60) rejected an approach which would allow to a court "a discretion to weigh one consideration against another, and to make a discretionary judgment as to whether a contempt has been committed or was likely to be committed". The Chief Justice took the view that the balancing of competing public interests "is done by the law in formulating the principle to be applied, and not by the court in deciding a particular case". On the other hand, Stephen J. (at pp.74-77), Mason J. (at pp.98-104) and Wilson J. (at pp.133-137) all seem to have accepted that where a question of public interest was raised, the Court was required to weigh that interest against the public interest in protecting the administration of justice from risk of interference. Brennan J. (at p.175) stated that "(t)here is a distinction between a technical contempt and a contempt which moves the court to action, either to enjoin a threatened contempt or the continuance of a contempt or to punish a contempt." His Honour took the view that it was in relation to the question whether the conduct should be the subject of a court order, that a court was required to balance the competing public interest "in preventing interference with the due course of justice" and in "permitting public discussion of matters of public interest". Murphy J. did not find it necessary to consider this issue, and Aickin J. (at p.119) limited his consideration of this question to expressing his agreement with the observations of Wilson J. relating to the degree of risk posed by the conduct there under consideration.

10. The issue in the B.L.F. Case was the restraint of public inquiry by a Royal Commissioner under Royal Commissions issued by the Commonwealth and the State of Victoria. It was claimed that the inquiry, with its attendant publicity, constituted a risk of prejudice to proceedings pending before the Federal Court of Australia. The context of the issues under consideration in the B.L.F. Case makes it clearer that it is not simply freedom of speech, or discussion, but more properly, freedom of information, that enters into competition with the public interest in protecting the administration of justice from risk of interference. As was observed by Mason J. (at p.98):

"The remarks of Jordan C.J. and more recently of Lord Scarman stress the overriding importance of freedom of discussion and speech to which should be added the equal importance of the public having access to information which it has a legitimate interest in knowing. Where the alleged contempt consists of newspaper discussion or report it is this public interest that is weighed in the balance against the public interest in maintaining the integrity of the administration of justice by taking such steps as may be necessary to protect it from interference. In weighing the competing factors that arise in that situation ... weight must be given to freedom of speech, discussion and information. Without information there can be no meaningful discussion." (See also Stephen J. at p.77.)

11. I would identify the public interest that is raised by the appellants in this case as the public interest in obtaining information. This interest is maintained and realized by, inter alia, freedom of speech and freedom of discussion. But the public interest in obtaining information is not an interest of constant value. Its value varies according to the subject-matter of the information, and its relevance to other heads of public interest. Thus in Bread Manufacturers, Jordan C.J. said that the public interest in the administration of justice may have to yield to "other and superior considerations", of which he instanced "the ventilation of a question of public concern" and "(t)he discussion of public affairs and the denunciation of public abuses, actual or supposed". Conduct engaged in for the furtherance of these "other and superior considerations" does not constitute contempt, notwithstanding its consequential risk of interference to the administration of justice, if the risk is the "incidental but not intended by-product" of that conduct. The words "incidental but not intended by-product" are to be understood in the light of established principle that intention is never decisive of whether or not a contempt has been committed: John Fairfax &Sons Pty. Ltd v. McRae (1955) 93 CLR 351, at p 371; Lane v. Registrar of Supreme Court of N.S.W. (1981) 148 CLR 245, at p 258; the B.L.F. Case at pp 56 and 133. Conduct referable to "other and superior considerations", will not be contemptuous, if done with the intention of, and as an incident of, furthering those "other and superior considerations". But the protection afforded to conduct referable to "other and superior considerations", may be lost if the occasion is used for some different purpose, in the same way that improper purpose may defeat qualified privilege as a defence to the publication of defamatory material. Thus the first step in the application of the principle in Bread Manufacturers is to identify the public interest which is raised in competition with the public interest in protecting the administration of justice from risk of interference, and thereafter to evaluate the competing public interests, not as a matter of discretion, but as a question of law, to determine which public interest takes priority in the circumstances. If in that balancing process a public interest is identified which takes precedence over the public interest in protecting the administration of justice from risk of interference, or which, in the particular circumstances, takes precedence over the "likelihood of prejudice", only then is it relevant to consider whether the risk of interference is the "incidental but not intended by-product" of that conduct. Where proceedings are instituted for punishment of conduct which is referable to a superior public interest, the moving party bears an onus of establishing beyond reasonable doubt that the risk of interference was not the "incidental but not intended by-product" of that conduct as, for example, by showing that the conduct was engaged in for an ulterior purpose, or that information imparted was extraneous to the subject-matter of the public interest.

12. In the present case the public interest to which the appellants relate their conduct is the public interest in disseminating information on the subject of child abuse, and the risk to children consequent upon the occupation in positions of authority and influence in youth organizations by persons convicted and/or charged with sexual offences against young people. That is a public interest which may (other relevant factors being established) outweigh the public interest in the individual's right to privacy, in so far as that right exists, and to reputation. However, the public interest identified by the appellants is of a different order from those great and fundamental matters touching the maintenance of our democratic processes, and the maintenance of free and open society, which matters may, even in the abstract, take precedence over the public interest in protecting the administration of justice from risk of interference. The public interest in the integrity of the criminal justice system also is a matter of fundamental importance. Notwithstanding that some offences are punishable summarily and that on some occasions an accused person may waive his or her right to trial by jury, the law regards as fundamental to the preservation of the rights and freedoms necessary for the maintenance of an open and democratic society that a person should not be convicted of a serious criminal offence save by the verdict of a jury given after a fair trial upon the evidence presented at that trial. In the B.L.F. Case, Mason J., commenting on the administration of criminal justice and the dangers of trial by media, said (at p.99):

"In such a case the paramount public interest is that of maintaining the administration of justice free from prejudice and interference. The countervailing public interest - freedom of discussion - is exclusively related to the guilt or innocence of the accused, the issue to be determined at the trial. In this situation freedom of discussion has no independent value and is therefore readily subordinated to the public interest in the administration of justice."

Accordingly, in my view, the public interest to which the broadcasts were referable was not an interest which could take precedence over, or even be equated with, protecting the administration of criminal justice from the risk of interference, encompassing as it does, the public interest in the maintenance of the right of every accused person to have a fair trial.

13. The principle in Bread Manufacturers does not restrict the balancing operation to matters of public interest in the abstract. It allows the balance to be struck in relation to "the possibility of prejudice", a consideration which includes the degree of risk posed by the impugned conduct. That balance may favour a public interest which may be, in abstract terms, of a lesser order than the public interest in protecting the administration of justice, because it has particular significance in the circumstances. Thus, for example, the balance may favour a competing public interest of a lower abstract order, if the risk, though real, is limited by reason that the information is general in nature, not directed to the accused person or the offence charged. So too, that public interest may be favoured if the manner and extent of publication are such that any prejudice can readily be overcome. Whilst it is incumbent upon the party moving for the punishment of conduct said to constitute contempt to establish beyond reasonable doubt that the conduct poses a real risk to the administration of justice, the question whether the competing public interest outweighs the degree of risk established is a question of law.

14. It is within the context of the balancing of the degree of risk and the public interest in the dissemination of the information the subject of the broadcasts that there falls for consideration submissions made on behalf of the appellants as to the probable delay between the broadcasts and the date of trial. Nicholson J. held that the probable delay was a period of 6-9 months. I see no reason to doubt the accuracy of that finding. It was also submitted that the non-permanent nature of the broadcast medium was a factor to be taken into account, and reliance was placed on observations as to the transient nature of certain publications by Wilson J. in the B.L.F. Case, at p.136.

15. In considering these submissions it is necessary to have regard to the nature of the information revealed in the broadcasts. Whilst it may be accurate to describe the radio medium as transient, the nature of the subject-matter discussed, the references to Father Glennon's ordination in the Catholic Church, and to his previous conviction of a sexual offence, all suggest that the scope of even a single broadcast addressed to these issues would have prejudicial effect enduring for a very considerable period of time. The effect was intensified and amplified by the repetition of the prejudicial material in the subsequent broadcasts which made reference to the previous broadcast or broadcasts. In these circumstances I do not think it could with any confidence be asserted that, even though the broadcasts constituted a real risk to the administration of justice, that risk was diminished either by the nature of the medium employed or by the probable delay between the broadcasts and the date of trial, to the extent that any balancing of the public interests could favour the public interest in the subject-matter of the discussion in which the first appellant was engaged.

16. There is a further and more important consideration. The disclosure of the previous conviction of a person facing a criminal trial is regarded as constituting a serious risk to the administration of criminal justice, for as Moffitt P. said in Attorney-General (N.S.W.) v. Willesee (1980) 2 NSWLR 143, at p 150:

"The popular view of the correlation between persons guilty of committing present crimes and those who have committed earlier crimes, leads to the popular and deeply rooted belief that it is more likely that an accused person committed the crime charged, if he has a criminal record, and less likely if he has no record."

This risk has the potential to undermine the operation of the criminal justice system: as Viscount Sankey L.C. stated in Maxwell v. Director of Public Prosecutions (1935) AC 309, at p 317, the exclusion of evidence of prior conviction at a person's trial is one of the most "deeply rooted and jealously guarded principles of our criminal law".

17. Not only was the revelation of his previous conviction likely to induce the view that Father Glennon was likely to have committed the offences the subject of the pending charges, that likelihood was reinforced by the insinuated suggestion that Father Glennon was guilty of other like offences, including offences in respect of children who had been "too scared to come forward". Taken together these remarks trenched directly on the question of Father Glennon's guilt of the charges pending. Where the impugned conduct goes directly to the question of guilt, it trenches at the very heart of the public interest in ensuring that no person is convicted of a criminal offence save by verdict given after a fair trial on the evidence given in that trial. In that situation a balancing process which merely weighed a lesser public interest against the "possibility of prejudice" would leave out of account a public interest which is fundamental to our rights and freedoms, and which is jeopardized by the conduct sought to be justified by reference to a lesser public interest. A canvassing of guilt could only be justified on the principle in Bread Manufacturers, if it were referable to a public interest superior to that of ensuring the integrity of the administration of criminal justice. As the public interest to which the broadcasts were referable does not take precedence over the public interest in protecting the administration of criminal justice from risk of interference, it is neither necessary nor relevant to consider whether it was established beyond reasonable doubt that the risk which the broadcasts created was incidental but not intended.

18. I would dismiss the appeals.

Orders

Appeals dismisssed with costs.