Where a person has been arrested and charged on information with an offence in respect of which justices may commit him for trial in the Supreme Court of Victoria, the publication after his arrest and before he has been so committed of matter tending to prejudice his fair trial in the Supreme Court is a contempt of the Supreme Court which that Court has jurisdiction to punish.

13 CLR 578

The publication in respect of a pending criminal charge of extrinsic ascer. tained facts to which any eye-witness could bear testimony, such as, in the case of a charge of murder, the finding of a body and its condition, the place where it was found, the persons by whom it was found, the arrest of the person accused, is lawful. But the publication of alleged facts depending upon the testimony of some particular person, which may or may not be true and may or may not be admissible in a Court of justice, and the publication of comments on alleged facts are unlawful, if such publication is likely to interfere with the fair trial of the person charged.

Decisions of the Supreme Court of Victoria (Madden C.J.): In re Packer, Ex parte Peacock, (1911) V.L.R., 401; 33 A.L.T., 69, affirmed.

APPEALS from the Supreme Court of Victoria.

Orders nisi in the Supreme Court of Victoria were taken out on behalf of Samuel Peacock, a medical practitioner, calling upon John William Packer, publisher of the Age newspaper, Henry Burrell, publisher of the Argus newspaper, and Thomas Smart, publisher and J. E. Davidson, editor, of the Herald newspaper, to show cause why they should not be committed for contempt of the Supreme Court in respect of certain statements and matter relating to Peacock, published in the respective newspapers, which were alleged to tend to imperil the fair and impartial hearing before justices of an information against Peacock charging him with the murder of one Mary Margaret Davies, and the fair and impartial hearing of any charge upon which he might be committed for trial in respect of such information, and to tend to obstruct or interfere with the due course of law and justice.

It appeared that the statements and matters in question were published in the respective newspapers after the arrest of Pea- cock, the swearing of the information against him and his remand for the further hearing of the charge, but before he was committed for trial. The nature of the statements and matters published sufficiently appears in the judgment hereunder.

The orders nisi were heard before Madden C.J. who made them absolute and fined Packer, Burrell and Smart £200 each, and fined Davidson £100 and directed him to be imprisoned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Packer v Peacock

Details

AGLC: Packer v Peacock [1912] HCA 8
Case: [1912] HCA 8
Decision Date: 13 March 1912

CaseChat Overview and Summary

This case involved appeals to the High Court of Australia from decisions of the Supreme Court of Victoria, which had found newspaper publishers guilty of contempt of court. The original proceedings were initiated by Dr. Samuel Peacock, who sought to have John William Packer (publisher of *The Age*), Henry Burrell (publisher of *The Argus*), and Thomas Smart and J.E. Davidson (publisher and editor of *The Herald*) committed for contempt. The alleged contempt arose from publications in their respective newspapers concerning Peacock, who had been arrested and charged with murder, but had not yet been committed for trial. The publications were said to tend to prejudice the fair hearing of the charges against Peacock.

The central legal issues before the High Court were twofold: firstly, whether the Supreme Court of Victoria possessed jurisdiction to punish for contempt of court in relation to a criminal charge before the accused had been committed for trial; and secondly, the extent to which a newspaper could lawfully publish matters relating to a pending criminal charge without committing contempt. The appellants argued that jurisdiction only arose once a case was formally pending in the Supreme Court, which they contended was only after committal. They also submitted that the publications, being statements of fact or inferences, were in the public interest and did not unfairly prejudice the accused.

The High Court affirmed the jurisdiction of the Supreme Court to punish contempts that tend to impair its capacity to administer impartial justice, even before committal for trial. The Court reasoned that the process of bringing an accused to trial is a continuous one, and publications that prejudice the public mind against the accused before trial are a contempt of the court in which the trial will ultimately take place. The Court distinguished between the lawful publication of "bare facts" – extrinsic, ascertained facts to which any eyewitness could testify, such as the finding of a body or an arrest – and the unlawful publication of alleged facts depending on particular testimony or commentary. Such publications, if likely to interfere with a fair trial, constitute contempt.

Applying these principles, the High Court dismissed the appeal of John William Packer, finding that *The Age*'s publications, which included significant commentary and rhetorical persuasion, clearly tended to endanger a fair trial. The appeal of Henry Burrell was also dismissed, as *The Argus*'s article, despite some attempt at factual reporting, created a strong impression that the deceased was dead and that Peacock had caused her death, thereby prejudicing the trial. Similarly, the appeal of Thomas Smart and J.E. Davidson was dismissed, as *The Herald*'s publications contained detailed narratives of alleged facts and conversations, akin to publishing witness proofs, which were deemed unjustifiable and prejudicial.

Orders