Jones v Registrar of the Court of Appeal

[1993] HCATrans 356

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S57 of 1993

B e t w e e n -

CINDY JONES

Applicant

and

REGISTRAR OF THE COURT OF

APPEAL

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J McHUGH J

Jones 1 19/11/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 1993, AT 2.19 PM

Copyright in the High Court of Australia

MR W.H. NICHOLAS, QC: If Your Honours please, I appear with

my learned friend, MS P.A. BERGIN, for the

applicant. (instructed by Freehill Hollingdale &

Page)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR P. LAKATOS, for

the respondent. (instructed by H.K. Roberts, Crown

Solicitor (New South Wales))

BRENNAN J: Yes, Mr Nicholas.

MR NICHOLAS: If Your Honours please, this application

throws up two question, we would submit. Firstly,

is whether an employee who wrote an article which was published by her employer can be said to have

caused its public publication and, secondly,

Your Honours, whether secondary participation in

the publication of the article requires intent based upon knowledge, notwithstanding that the principal offence is one of strict liability or

does not depend upon proof of intent.

Your Honours, I wish to take you to three

cases in a moment: one, O'Sullivan v Truth and

Sportsman, which deals with the concept of

causation; the circumstances, we would say,

analogous to this one, and then the cases of

Giorgianni and Yorke v Lucas which deal with the

question of secondary participation and what needs

to be established in order to deal with that.

Your Honours will remember from the affidavit in support of this application - - -

DAWSON J: What, do you say that the applicant was merely

an accessory?

MR NICHOLAS:  Yes, Your Honour. We say that on any view of

the evidence she could not be treated as a
principal publisher.	The charge against her was -

and the terms of the charge are on page 2 of the

book - that "she caused to be published". There

were two charges as Your Honours know: there was

the first against the publisher, Fairfax, and it

was couched in substantially the same terms as Your

Honours see from page 2 of the -

DAWSON J:  It is a novel concept, an accessory before the

fact, presumably, to contempt.	I am not saying it
is wrong.

MR NICHOLAS:  The question is novel, it seems, Your Honour,

although it might seem to be extraordinary that it has taken until now to get here. The way the case

was presented against us was this, and Your Honours

Jones 2 19/11/93

see it on page 2 where the "Statement of Charge" appears. The first charge against the newspaper company was that the first opponent published the

matter. Against Ms Jones, in paragraph 2, was that

she "caused to be published matter", and then over

on page 4, where the particulars of the charge are

set out in paragraph 12, it was alleged against her

that she wrote it.

DAWSON J: Which category of accessory do you put her in?

An aider and an abettor; an accessory before the

fact?

MR NICHOLAS: Although she was not charged this way, we

would say the reality is that she may be seen to be

an aider and an abettor. That is about as far as

it could go.

McHUGH J: But does that help you, that distinction? Is not

an aider and an abettor to be treated in the same

principle in the first degree?

MR NICHOLAS:  Yes, Your Honour. We would say this, that

when one gets into that area then the question of

intent, of knowledge of the essential elements then

do come into play; whereas, against the principal,

in a contempt case, they may not. It is a very

substantial way, we would say, Your Honour, that

there the difference lies.

As Your Honours will appreciate from the facts in this case, the steps go this way: she was the

employee, obviously; she was employed by an entity

which had a system pursuant to which copy went

through the editorial processes and were, the
expression is, "legalled". That was a system in
place whereby, at the discretion of the editor or
those certainly above her in the line may or may

not have referred matter to their lawyers for

checking prior to publication.

What was established was that Ms Jones wrote

her copy. She handed it in to be dealt with by the

editors and those in the editorial level whose

decision it was to publish either at all, or some,

or all of the material which she wrote and whose

decision it was to refer the matter out for

legalling if they saw fit to do so.

Now, the evidence established that it was

Ms Jones' expectation and intention that the

article that she gave to her editors would, in

fact, be legalled. Now, as the history of the case

showed, that did not happen.

BRENNAN J:	What difference does that make, Mr Nicholas?
Jones	19/11/93
MR NICHOLAS:	We say it makes a very real difference, with

respect, Your Honour, because she never intended to

publish an article that had the necessary tendency.

DAWSON J: But she did.

BRENNAN J:  Your hypothesis says that being legalled means

that anything that had the necessary tendency would

not be published.

MR NICHOLAS: This is what Mr Justice Priestley, the

dissenting judge, found, was that it was not her

intention to have the article published if it was

contemptuous. It was her expectation and intention

to have it undergo the process. Of course, that is

where she stops. Thereafter, of course, the

question of whether or not the article is published lies in the hands of others. She has no reach into

that and had no - - -

DAWSON J: But she wrote the article for the purpose of

publication. She hoped that if there was anything

wrong with it it would be dragged out of the

system. That is all. Perhaps she even expected

it.

MR NICHOLAS:  Your Honour, that was certainly her hope and

her expectation but it has this very real

consequence, we would put, that it could not be

said as against her that she intended the

publication of an article at the time and with the

content that rendered it contemptuous.

DAWSON J: If you test that: what happens if the legal

advice was bad and, in fact, the advice was that it

was not contemptuous and it was published?

MR NICHOLAS:  She remains in the same situation. The

proprietor cannot succeed on that. The

proprietor, on any view, we would - - -

DAWSON J:  She remains in the situation of having written an

article which was contemptuous which she intended

to be published.

MR NICHOLAS:  Your Honour, she intended it to be published

provided it had gone through the system.

DAWSON J:	And it did in the example I gave you.
MR NICHOLAS:	No, I should go on to, if I may respectfully

say so, repeat the next leg: that it was not

contemptuous. I think the evidence shows that she

was conscious that it ought to be attended to and

she presents it and in the expectation that that

would, in fact, happen.

Jones 4 19/11/93

Now, Your Honours, what we say; that it just

cannot be said that she was the principal

publisher. Now, if that be right and she was

charged as a principal - - -

DAWSON J:  What is the intent required for the crime of

contempt?

MR NICHOLAS:  Your Honour, as far a principle is concerned,

there does not appear to be any, if one looks to

the tendency of the matter.

DAWSON J:  The publication was not necessarily the only

contempt, was it?	Why was not the writing of the
article a contempt?

MR NICHOLAS:  In some circumstances it may be, Your Honour,

but not in circumstances such as these where you

have an employee - can I perhaps put another

example to Your Honour? Say you had the letter

writer to the newspaper:  we would put him in an

entirely different category; so would we put him
in a category along with those who give press
conferences and of recent times such people have

attracted the attention of the courts in these sort

of proceedings and have been found liable and they
have been charged and found liable as principal

publishers. Why? Because it seems they had the

control and they consented to the publication of

the matter which they were uttering or writing in

the form in which it left them.

Now, that, we say, is a substantially

different situation to a journalist in these

circumstances who has no reach into the

decision-making process or activity of publication.

DAWSON J:  It does not matter. The contempt is not the

publication. The contempt is the interference of

the due administration of justice and her part in

that interference was writing an article which

prejudiced the fair trial of someone.

MR NICHOLAS: But, Your Honour, where one has a situation

that - her act of publication was to publish it to

the editor.

DAWSON J: It does not matter about publication, does it?

MR NICHOLAS:  We, with respect, say it does because if one

analyses what she did and what she intended to do,

that is where it begins and ends. You see,

Your Honour, if I am wrong about that then it would

follow, it seems to us, that in the category of contempt law the usual principles applicable in

respect of liability in criminal law just simply do

not apply. So that if the journalist in this case

Jones 19/11/93

is rendered liable from the bare fact that she

wrote the words which ultimately, at the behest of

others and at the decision of others, were

published and had later found to be contemptuous

then, so too, we would suggest, all those in the
chain, right through to the newsagents, the
vendors, all those through to the ultimate

dissemination, the ultimate act of publication.

With great respect, we would submit that that would

not be correct.

BRENNAN J:	Why not?
MR NICHOLAS:	Your Honour, because if one is looking for criminal responsibility, then one is looking for
those who can be said to have caused or controlled
the criminal act.

BRENNAN J: But if the problem is the doing of something

which has a tendency to pervert the course of

justice and that function is the dissemination of

material of this kind, why would it be that anybody

who knowingly distributed that material would not

be guilty, whether he is a newsagent or not?

MR NICHOLAS:  Once you get to "knowingly", Your Honour, that

is the point.

BRENNAN J: That is the point in the case of those people

and in this case the knowledge is as to the

material published. Your proposition seems to be

knowledge as to whether it constitutes an offence.

MR NICHOLAS:  I embrace that with Your Honour - and I know

what Your Honour is putting back to me - but we

would say that if it be correct that she is a

secondary participant, then the principles which we

understand apply to such a category would require

proof that she intended to publish an article which

was contemptuous, because that would be one of the

essential facts which would be necessary to be

established, we say.

BRENNAN J: Could I suggest to you that the relevant mens

rea - if that is the term - is to publish this

article. If the article is, as a matter of

characterization, one which tends to prejudice a

fair trial, then cadit quaestio.

MR NICHOLAS:  Your Honour, as I put a moment ago, we would

submit that, coming in as a secondary, it is

necessary to establish her knowledge of that aspect

of quality of the publication. But, Your Honour,

when one comes to the question of intent, then Your

Honour may see the way Mr Justice Priestley dealt

with that because he makes his finding for her on

the way he interpreted the evidence as to

Jones 6 19/11/93

intention. If I can take Your Honour to the

passage of his judgment, Your Honour will see - - -

BRENNAN J: Yes. This is the difficulty though, is it not,

that if you want to look at it from the point of

view of knowledge of what would be published, it

seems to me that you are in a grave factual

difficulty, with great respect to

Justice Priestley, because there was only one

article ever written by this applicant and that is

the one that she wrote.

MR NICHOLAS:  Yes.

BRENNAN J: If, however, the defence of legalling was to

have any currency at all, I would have thought that

the defence would be that nothing would be

published which came from her, in the

circumstances, until it was discovered that there

was no risk or, however you wish to put it, of the

tendency to procure the miscarriage.

MR NICHOLAS:  Your Honour, that is essentially what

Mr Justice Sheller, in his analysis, found. That

is essentially, we say, what Mr Justice Priestley

found. Part of the problem in the case and one of

the reasons why we say this is a suitable vehicle

for leave - that is a different point - is that

each of the judges come to their conclusion by
different routes and with regard to the application

of difference principles. But

Mr Justice Priestley, Your Honours, at pages 27 and

28 of the book -

DAWSON J: But you cannot get a guarantee that what you do

will not constitute an offence, so that if you do

it it does not constitute an offence. That is what

you are saying. I mean, if the people who are

doing their legalling do not do their job, it is an

offence, just as it would be if they were doing

their job and came to the wrong conclusion.

If you went to your lawyer and asked him,

"Will what I am doing constitute a criminal

offence?", and he says, "No", and you go ahead and

do it, you are liable.

MR NICHOLAS:  Your Honour, in this case, it was found that

her intention was not an unqualified intention to

publish.

McHUGH J:  I know, but your problem, it seems to me, is that

having regard to the finding of fact which appears

on page 52:

that by Saturday morning she knew that the article would be published on the Sunday -

Jones 19/11/93

that the condition goes to the quality of the

publication, not to the fact of publication at all.

Let me illustrate it. If she had said, "This

article is not to be published unless you tell me

it has been submitted to a lawyer and I find out

what they say about it." That would be one thing

and, for my part, I think you might be on

reasonably strong ground. But she did not say

that. She intended the article to be published

because she had a belief that it did not offend the

law of contempt and it seems to me at the moment

that there is no difference between that state of

mind than if she had formed her own judgment that

it did not constitute contempt of court.

MR NICHOLAS:  Your Honour, if that is where it was left or

how it should lie then I see, with respect, the

force of what Your Honour is putting back to me.

But there is one element which has been overlooked

and, with respect, His Honour Mr Justice Sheller

overlooked at page 52. If one goes to page 52 -

and it follows a number of references which make it

plain that she expected it had been legalled; it

was delivered up on the expectation that it was

legalled and she assumed that it had been. I can

take Your Honours to the lines if it is necessary.

But Mr Justice Sheller himself says, on page 52,

line 8, she says:

She did not discuss anything about the

"legalling" process.	She assumed it had been
"legalled".	As Miss Jones saw it on the

Saturday morning the article included the

heading, the introduction and the photographs

and their captions. She said that she did not

play any part in the decision to publish the

article. However I am satisfied beyond

reasonable doubt that by Saturday morning she

knew that the article would be published on

the Sunday -

Now, Your Honours, what has not been taken into

account is that on the Saturday when she looked at

it in its form ready to go, she was looking at it

on the assumption that it had been legalled.

BRENNAN J: Meaning what?

MR NICHOLAS: Meaning, Your Honour, that a few days before

when she sent her copy up the line, in

circumstances where her expectation was that these

things would happen, she reads it on the day before

on the assumption that the processes which she

expected to have been put in operation did, in

fact, take place.

Jones	19/11/93
McHUGH J:	But that only means that by the Saturday morning

she had a belief as to the quality of what she was

intending to publish and, unfortunately, from her
point of view, that is irrelevant for the purposes

of the law of contempt.

MR NICHOLAS:  We say, Your Honour, two things about that:

if it gets back to the circumstances in which she

came to write the article - and that is what she

was charged with, that she caused it by writing it.

Now, when she handed it up, that was the end of it

as far as her role in the publication process was

concerned. Now, at that step, she was doing so

with - if I can put it this way - a qualified

intention; not that her article be published in

the form in which it was, unlooked at and

unchecked. Her expectation and intention was that

if it was going to be published at all, a matter

over which she had no control, it would be

published after it had been through the process.

As a matter of fact, it was not put through that

process.

Now, in those circumstances, we would say you have a difference in substance, a substantially

different situation from the circumstance where she

wrote if off, was satisfied about it, intended it

to go as it was and no more than that. We would

concede that is a different situation. But if it

is correct that she is a secondary participant

then, unless the law of contempt is in a different

field altogether, and the principles which govern

the liability of secondaries just do not apply in

this field, our submission is that the Court of

Appeal were wrong and that there was a miscarriage of justice in this case.

If one comes to deal in terms with the charge:

the charge against her was that she caused it to be

published. Your Honours, we would take you, in

considering that, to the decision of this Court in

O'Sullivan v Truth and Sportsman, 96 CLR 220. If I

can take Your Honours firstly to the headnote at

page 220 because it sets out the terms of the

statute in which the relevant term is to be found.

Your Honours, there is a reference to section 35(1)

of the Police Offences Act which -

makes it an offence to "offer for sale, sell,

or cause to be offered for sale or sold to any

person" any newspaper containing any report of

legal proceedings, or other article, touching

or relating to -

et cetera. Your Honours, the case dealt with the

matter as to what it was necessary to prove in

Jones 9 19/11/93

order to establish that a party had caused to be

offered for sale the material.

Your Honours, can I take you over to page 228

and read from about 10 lines from the top of the

page. Your Honours will see a reference to

Lovelace v Director of Public Prosecutions, and if

I could continue from that reference:

Before a man can be convicted of causing he

must be in a position of dominance and control

so as to be able to decide whether the act
should be done or not, and it must be

established that he gave some order, command,

direction, or authority to the person doing

the act. This appears to mean that when it is

made an offence by or under statute for one

man to ''causett the doing of a prohibited act

by another the provision is not to be

understood as referring to any description of

antecedent event or condition produced by the
first man which contributed to the

determination of the will of the second man to

do the prohibited act. Nor is it enough that

in producing the antecedent event or condition

the first man was actuated by the. desire that

the second should be led to do the prohibited

act. The provision should be understood as opening up a less indefinite inquiry into the

sequence of anterior events to which the
forbidden result may be ascribed. It should
be interpreted as confined to cases where the
prohibited act is done on the actual

authority, express or implied, of the party said to have caused it or in consequence of

his exerting some capacity which he possesses

in fact or law to control or influence the

acts of the other. He must moreover

contemplate or desire that the prohibited act

will ensue. What amounts to a causing within

this view by no means coincides with the

definition of an accessory before the fact.

And the next reference we would give Your Honours

is the passage from a judgment of Mr Justice Kitto

at page 231. About 10 lines from the top of

page 231 is the reference to Shave v Rosner, and if

I could read from the line after that. The passage begins:

Certainly encouraging the doing of an act is

not the same thing as causing it; and this the

Police Offences Act itself recognises, in

s 12(l)(d). The truth is, I think, that one

person cannot be said to cause another's act

unless not only does the former express it as

his will that the act shall be done by the

Jones 10 19/11/93

latter but the latter's decision to do it is a

submission to the former's will, that is to

say a decision to make himself the instrument

of the former for the effectuation of his

will.

Now, Your Honours, we would say that those

principles are directly in point in this case

having regard to the formulation of the charge in

this case. It would be quite plain, we would say,

that if we are right on that then the court was

wrong to find her guilty of causing the act

complained of.

Your Honours, the matters that we would ask

Your Honours to consider relating to what needs to

be established if she is to be seen as an

accessory, as a person who aids or abets, bearing

in mind that she was not charged that way and it

may be that she was not charged that way because,

inferentially, it may have been accepted that it

threw up problems for the prosecution on the

question of intent.

So that if one comes to York v Lucas, 158 CLR

661 - I think it is a convenient way of dealing

with Giorgianni as well. The situation in York v

Lucas, as Your Honours may remember, was that there

were proceedings under section 52 of the Trade

Practices Act against a corporation and against certain individuals involved with the corporation

under section 75B of the Act, the terms of which

are set out in the headnote at page 661.

Your Honours see the matters going to "aiding and

abetting, counselling or procuring" is introduced.

We would take Your Honours to the last line on

page 666:

Turning first to par(a) -

of 75B -

the appellants immediately encounter the

difficulty that the words used, "aided,

abetted, counselled or procured", are taken

from the criminal law where they are used to

designate participation in a crime as a

principal in the second degree or as an

accessory before the fact. Both in the case of felonies where the principal offender and

the secondary participant commit separate

offences, and in the case of misdemeanours

where no distinction is drawn between the two,

a person will be guilty of the offences of

aiding and abetting or counselling and

procuring the commission of an offence only if

Jones 11 19/11/93

he intentionally participates in it. To form

the requisite intent he must have knowledge of
the essential matters which go to make up the

offence whether or not he knows that those

matters amount to a crime. So much was

affirmed recently in Giorgianni v The Queen.

And the facts of the case are given, Your Honours.

If I can bring you down to about 10 lines from the

bottom of that paragraph:

Nevertheless it was held that to have aided

and abetted or counselled and procured the

offence of culpable driving the appellant must
have intentionally participated in that
offence and to have done so must have had
knowledge of the essential matters which went

to make up the offence on the occasion in

question. Those matters included the
defective condition of the brakes upon the
vehicle being driven, because the culpable
driving alleged consisted of the driving of
that vehicle with defective brakes. Proof of
such knowledge on the part of the principal
offender was, however, not part of the

prosecution case because the principal offence

was one of strict liability.

If para (a) of s 75B imports the

requirements of the criminal law, it is clear

in the light of Giorgianni v The Queen that

Lucas could only be brought within that

paragraph if he intentionally aided, abetted,

counselled or procured a contravention by the

Lucas company of s 52 of the Trade Practices

Act. Upon the findings of the trial judge,

however, Lucas lacked the knowledge necessary

to form the required intent. A contravention

of s 52 involves conduct which is misleading

or deceptive or likely to mislead or deceive

and the conduct relied upon in this case

consisted of the making of false

representations. Whilst Lucas was aware of

the representations - indeed they were made by

him - he had no knowledge of their falsity and

could not for that reason be said to have

intentionally participated in the

contravention.

Your Honours, finally, at page 676, from the

passage from the judgment of Your Honour

Justice Brennan, Your Honours see the references

from Giorgianni, and then if I could pick up the

passage in the concluding paragraph on 676:

Their Honours confine the requirement of intention, and thus the requirement of

Jones 12 19/11/93

knowledge, to "the commission of the acts

which constitute" the offence. Another

question, which their Honours considered

earlier in their judgment, is the requirement

of intention in a secondary participant with

respect to the result of the acts which

constitute the offence when the occurrence of the result is an element in the offence - eg, death in the crime of involuntary

manslaughter. Whether a secondary participant

is criminally liable in all such cases without

knowledge of the result if the offence is so

defined that knowledge or foresight of the

result is not required of the principal

offender is a question which does not now

arise -

and reference, one again, is made to Giorgianni.

Now, Your Honours, I suppose what I would put by

way of conclusion tends to repeat what I have put earlier, with respect, but in this case it simply was not her knowledge or intent to publish an

article or to cause to be published or, indeed, to

have it go beyond her editor or those involved in

the decision-making process which led to

publication, an article of the quality which
ultimately was published.

But for Mr Justice Priestley whose conclusion

turned on him finding that her intention was not an
unqualified intention to publish. He said it was

qualified; it was qualified by the intention that

it be legalled and therefore he found that the

Crown had failed to establish its case against her.

Mr Justice Mahoney seemed to approach it on

the basis that she was a secondary but then moved

from that - did not deal with the matter any

further and moved from that to determine the

question of causation with regard to tests

applicable in the circumstances of tort, and he

referred amongst others to March v Stramare.

Mr Justice Sheller, however, expressed the

view that approaching that question with regard to
such principles was inappropriate, and he looked to

what was a degree of participation or involvement.

As we understand His Honour, he provides, in

effect, a third basis for approaching the question

of liability of a person in the circumstances of

Ms Jones.

So, Your Honours, we submit with respect that

this is an appropriate vehicle; it is a matter, the

outcome of which will necessarily affect a great

many people in a great many situations involved in

Jones 13 19/11/93

the chain of the publication of any matter from the

processing of writing to the ultimate process of

delivery and distribution and we would submit with

respect that having regard to the principles laid

down by this Court, it is clear that there has been

a miscarriage of justice and that this is an

appropriate case in which leave should be granted.

BRENNAN J: Yes, thank you, Mr Nicholas. We need not

trouble you, Mr Solicitor.

In the view of this Court, the correctness of

the decision of the Court of Appeal is not attended with sufficient doubt to warrant a grant of special leave. Accordingly, special leave is refused.

MR MASON:	I seek costs.
MR NICHOLAS:	I cannot say anything, Your Honour.

BRENNAN J: It is refused with costs.

AT 2.56 PM THE MATTER WAS ADJOURNED SINE DIE

Jones 14 19/11/93