R v Glennon

[1992] HCA 16

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

THE QUEEN v. GLENNON

(1992) 173 CLR 592

6 May 1992

Criminal Law

Criminal Law—Permanent stay of proceedings—Pre-trial publicity—Possibility that juror may have acquired knowledge of accused's previous conviction for similar offence—Whether ground for stay.

Decisions

MASON C.J. AND TOOHEY J. This is an application for special leave to appeal from a judgment of the Full Court of the Supreme Court of Victoria (McGarvie and Nathan JJ., Southwell J. dissenting) sitting as the Court of Criminal Appeal. That Court upheld the appeal of the respondent against convictions returned by a jury in the County Court at Melbourne, quashed the convictions and entered verdicts of acquittal. The respondent was convicted in June 1991 on five counts: indecently assaulting a girl under the age of sixteen, attempted buggery of a boy under the age of fourteen, buggery of a male with violence and two counts of indecently assaulting boys under the age of sixteen. The respondent was acquitted of the other twelve charges on the presentment filed against him. All offences were alleged to have been committed between 1977 and 1980.

2. The application for special leave is opposed on the ground that special leave to appeal should be granted to the Crown only in very exceptional circumstances: see R. v. Lee (1) (1950) 82 CLR 133, at p 138 and Reg. v. Benz (2) (1989) 168 CLR 110. Although, at common law, an appeal did not lie at the suit of the Crown from a verdict of acquittal by a jury because the verdict of the jury was sacrosanct, a Crown appeal from a judgment of acquittal given by a court of criminal appeal stands in a different position, as Mason C.J. explained in Benz (3) ibid., at pp 111-113. To quote the words of Evatt J. in R. v. Weaver (4) (1931) 45 CLR 321, at p 356:
"The verdict of acquittal entered by the Supreme Court as
a Court of Criminal Appeal, whatever it may be in point of form, differs greatly in substance from an original verdict of a jury to whom an accused person has been given in charge upon an indictment and who have acquitted. The jury's verdict of not guilty has a special constitutional finality and sanctity which are always regarded as an essential feature of British criminal jurisprudence." We do not propose to repeat the views expressed by Mason C.J. in Benz. After examining them in the light of argument in this case, we are convinced of their correctness.

3. When the Crown seeks special leave to appeal in criminal matters, its position is different from that of a convicted person seeking leave. The Court is naturally reluctant to grant an application by the Crown and will require a very strong case of public importance concerning the administration of justice to be made out. In that respect, the grant of special leave is "exceptional". In deciding whether such a case has been made out, it is important to bear in mind that this Court has a responsibility to declare the common law for Australia (5) Reg. v. Darby (1982) 148 CLR 668, at p 671. In that case, however, counsel for the respondent did not contend that there was any special onus confronting the Crown in an application for special leave to appeal.

4. and cannot allow an error of principle on the part of a court of criminal appeal to remain uncorrected when that error may be perpetuated and become the source of further error (6) Benz (1989) 168 CLR, at p 113. As will become clear, we consider that this case raises questions of principle with ramifications which have overriding importance for the administration of justice in this country. Before we turn to discuss what is at stake in this case, it is first necessary to set out the facts briefly.

5. The respondent is a Roman Catholic priest but has held no official position within the Church since his conviction in 1978 on a charge of indecently assaulting a girl under the age of sixteen. For that offence, he was sentenced to two years' imprisonment. In October 1985, the respondent was a witness for the prosecution in the Magistrates' Court in proceedings against his nephew, James Glennon, and Rodney Hood. The two men were charged with having assaulted the respondent. Counsel for the defendants questioned the respondent about his 1978 conviction and alleged that he had committed homosexual rape on Hood. The respondent denied that allegation; the defendants were convicted of assault.

6. Extensive publicity was given in the Melbourne media to the allegations made against the respondent in the Magistrates' Court. Hood was interviewed by the police and, as a result of the publicity, a number of other people approached the police with complaints that the respondent had sexually assaulted them during their involvement with him in a youth organization. The respondent himself was then interviewed by police on two occasions and came before the Magistrates' Court on 12 November 1985 charged with a number of offences, including offences against Hood. In 1986, the respondent was interviewed by the police on three further occasions and further charges were laid.

7. Commencing on 13 November 1985, Mr Derryn Hinch, then a Melbourne radio commentator, mounted an attack on the respondent in three separate broadcasts. The attack comprised serious allegations of criminal conduct and sexual impropriety and specifically referred to the respondent's prior conviction. The text of those broadcasts appears as an appendix to the judgment of Toohey J. in Hinch v. Attorney-General (Vict.) (7) (1987) 164 CLR 15, at pp 77-80, in which this Court dismissed an appeal by Hinch against his conviction for contempt of court. The judge who heard the contempt charges against Hinch summarized the nature and effect of the broadcasts in terms accepted on appeal by both the Full Court and this Court:
"In my opinion the broadcasts, and each of them, would
have influenced most listeners to conclude that (the respondent) 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 (the respondent) must, in my opinion, have been created. Reference is made, as I said, 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. Our system of justice, as Mr. Hinch knew, would not have allowed them to be led in evidence and a jury which heard them would be discharged. Even those trained in the criminal law find that this sensitive subject of paederasty (or child molestation as Mr. Hinch calls it), is one in which it is necessary to be extremely careful not automatically to argue from prior conviction of one offence to guilt on pending charges. Those not so trained in the law would generally feel no such constraint. But to determine the guilt or innocence of a person charged by taking into account any such considerations would be foreign to the basic principles of justice according to our law. 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."

8. The last of the three broadcasts took place on 11 March 1986. However, it is common ground that the proceedings against Hinch, his unsuccessful appeals against conviction and his brief period of imprisonment for contempt received extensive and at times sensational coverage in the Melbourne media. Counsel for the respondent submitted that this publicity served to keep fresh in the public mind the substance of Hinch's contemptuous comments.

9. Hinch was released from prison on 26 October 1987. A presentment was filed against the respondent two months later and the trial listed for hearing on 1 August 1988 in the County Court at Melbourne. An application was made on that day for a permanent stay of proceedings on the basis that the respondent would be unable to receive a fair trial by virtue of the prejudicial effect of the pre-trial publicity. When Judge Harris refused the application, proceedings by way of originating summons seeking the same relief were instituted in the Supreme Court of Victoria. The originating summons was finally heard before Crockett J. in July 1990 and dismissed. The trial eventually proceeded before Judge Neesham in May-June 1991, more than five years after the last of the three broadcasts by Hinch and three and a half years later than the date contemplated by the Full Court of the Supreme Court when it dealt with Hinch's contempt. At the beginning of the trial, a further application for a permanent stay was made to Judge Neesham and refused. His Honour held that he was bound to follow the conclusion reached by Crockett J. It was common ground that no new circumstances had occurred between the decision of Crockett J. and that of Judge Neesham which were relevant to the exercise of the discretion to grant a stay.

10. Apart from the unique case of Tuckiar v. The King (8) (1934) 52 CLR 335. After the prisoner was convicted, his counsel made a public statement in court that confessional evidence admitted against the prisoner was correct. An appeal having been allowed, a verdict of acquittal was entered because, in the view of this Court, the prisoner could not justly be subjected to another trial at Darwin and no other venue was practicable, there has been no other instance in the judicial history of this country of an accused's conviction being quashed and a verdict of acquittal then entered on account of the potential prejudicial effect of pre-trial publicity. The decision of the Court of Criminal Appeal is all the more remarkable in that it rejects the discretionary judgment of Crockett J. refusing a stay in circumstances where that discretionary judgment appears to disclose no error of principle. Not only does the Court of Criminal Appeal appear to have erred in principle in rejecting the assessment made by Crockett J., but the Court also appears to have given little, if any, weight to the community's right to expect that a person charged with a criminal offence be brought to trial (9) Barton v. the Queen (1980) 147 CLR 75, at p 102; Jago v. District Court (N.S.W.) (1989) 168 CLR 23, at p 33; Carver v. Attorney-General (N.S.W.) (1987) 29 A Crim R 24, at p 32, to the means available to a trial judge to ensure a fair trial and to the steps taken by the trial judge in the present case. And, in addition, as we shall explain, Nathan J. seems not to have recognized that there is a difference between the criteria applied in deciding whether pre-trial publicity amounts to a contempt and the criteria applied in determining whether pre-trial publicity precludes a fair trial or necessarily results in a miscarriage of justice if the trial proceeds and results in a conviction. In the light of these considerations, it is obvious that the Crown case raises important questions of principle.

11. As for public importance, there can be no doubt that the decision of the Court of Criminal Appeal has far-reaching consequences for the administration of justice. In contemporary society, where sensational media publicity presents very serious problems in ensuring that persons accused of criminal offences receive a fair trial, it is a matter of the utmost significance to determine whether the Court of Criminal Appeal was right, in the circumstances already outlined, in granting a permanent stay and thus a continuing immunity from prosecution. The importance of what is at stake in the present case was forcefully expressed by Southwell J. in the Court of Criminal Appeal:
"And so it is that this court is being invited, in effect,
to create legal history by finding that in a large city, adverse media publicity must be held to have had the result that a person charged with serious offences will never be called upon to face trial. This, to my mind, is an invitation which ought not here be accepted."

12. For these reasons, the Crown should be given special leave to appeal.
The judgment of Crockett J. and the basis of the appeal to the Court of Criminal Appeal

13. The decision of Crockett J. was made more than two and a half years after any publicity was given to the respondent and the allegations against him. Crockett J. was not persuaded that the respondent's trial, if allowed to proceed, would be unfair. His Honour considered that any potential prejudice to the respondent could be overcome by steps that the trial judge could take in the course of the trial. In this respect, he relied on the observations of Wilson J. in Barton v. The Queen (10) (1980) 147 CLR, at p 111, which Mason C.J. cited in Jago (11) (1989) 168 CLR, at p 34;
"To justify a permanent stay of criminal proceedings,
there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'." Crockett J. also found as a fact that the possibility that a juror would recall the publication of the respondent's prior conviction was "slight". In coming to this conclusion, his Honour undertook a careful analysis of the content of the public remarks made by Hinch and endeavoured to assess public awareness and consciousness of the remarks made years previously, principally by examining the findings of a poll conducted by Irving Saulwick and Associates, to which we shall refer in more detail.

14. The primary ground of the respondent's appeal to the Court of Criminal Appeal was that the convictions were unsafe and unsatisfactory and amounted to a miscarriage of justice. Under s.568(1) of the Crimes Act 1958 (Vict.), the Full Court has power to allow an appeal against conviction on the ground that there was a miscarriage of justice. The basis of the respondent's argument was not that there had been any unfairness in the conduct of the trial, but that the pre-trial publicity had rendered a fair trial so unlikely that a permanent stay should have been ordered. The majority in the Court of Criminal Appeal accepted this argument without acknowledging that there was any need for them to be satisfied that there was any error in principle on the part of Crockett J. in his exercise of discretion. Although the Court of Criminal Appeal was technically hearing an appeal from convictions obtained at the trial, it was in effect determining whether Crockett J. and the trial judge, Judge Neesham, erred in refusing the respondent's applications for a permanent stay. This curious position comes about as a result of the operation of the relevant provisions of the Supreme Court Act 1986 (Vict.) and Pt VI of the Crimes Act. In Boehm v. Director of Public Prosecutions (12) (1990) VR 494, the Victorian Court of Criminal Appeal held that an accused person, entitled to apply to a judge of a superior court for an order staying a trial so as to prevent an abuse of process, must wait upon the verdict at trial in the event that the application is denied. Once convicted, the merits of the application for a permanent stay become justiciable before the Court of Criminal Appeal in an appeal against conviction under Pt VI of the Crimes Act.

15. Because the Court of Criminal Appeal appears to have thought that Judge Neesham was practically, though not legally, bound to follow Crockett J.'s decision, the focus of the Court's attention was directed to that decision. It was common ground that the respondent's appeal could not succeed unless it were shown that Crockett J.'s decision was erroneous in accordance with the established principles governing appeals from discretionary judgments. Accordingly, it was for the respondent to show that Crockett J. acted upon a wrong principle, took into account some extraneous consideration, failed to take into account a relevant consideration or mistook the facts (13) House v. The King (1936) 55 CLR 499, at p 505; Reg. v. Shrestha (1991) 65 ALJR 432, at p 437; 100 ALR 757, at p 766. If convinced of such an error but not otherwise, the Court of Criminal Appeal was entitled to set aside the decision of Crockett J. and exercise its own discretion. Likewise, the task of this Court is to decide whether the majority in the Court of Criminal Appeal were correct in concluding that Crockett J.'s exercise of discretion was erroneous and that the verdicts at trial were therefore unsafe and unsatisfactory.
The judgments of the Court of Criminal Appeal

16. The basis of the conclusion reached by McGarvie and Nathan JJ. in the Court of Criminal Appeal that the verdicts were unsafe and unsatisfactory was a finding that there was a substantial risk that some members of the jury had become aware of the prior conviction of the respondent as a result, directly or indirectly, of the pre-trial publicity. It is important to note that the conclusion of the majority did not in any respect hinge on the way in which the trial was conducted. McGarvie J. observed:
"The judge conducted this trial in the manner best
calculated to have the charges heard and decided by a jury which did not have or acquire, and was not influenced by, impermissible knowledge such as knowledge of the prior conviction of the (respondent)."

17. McGarvie J. appeared to rely upon two factors in making the finding that there was a substantial risk of the jury becoming aware of the prior conviction. The first of the factors was that he considered that it was statistically probable that there were more people on the jury panel with knowledge of the respondent's case than the two who actually admitted their knowledge and were excused.

18. In this respect it is necessary to describe the course of action adopted by the trial judge when he empanelled the jury. The jury which tried the respondent was selected from a panel of forty to fifty persons. Approximately half the panel was brought into the courtroom and addressed by the judge. His Honour identified the charges, named the alleged victims and principal witnesses for the prosecution and briefly summarized some background facts. His Honour then stated:
"If anybody among you knows any of the persons that I have
named or believe that you may know anything about the circumstances of this case or have heard anything about the circumstances of this case, would you kindly hold your hand up." One juror then said that he had "read an article" and another admitted to having been taught by the respondent. Both were excused. The second half of the panel was then brought into the courtroom and the same procedure was followed. On this occasion, no one raised a hand in response to the question asked by the trial judge.

19. The only suggested foundation for the inference drawn by McGarvie J. as to the knowledge possessed by members of the panel was the results of the poll conducted at the request of the respondent's advisers by Irving Saulwick and Associates. Without objection from counsel for the Crown, evidence of this poll was led before Crockett J., who said of it:
"This poll and how it should be interpreted, I think it is
correct to say, in the end were treated as virtually being the determinant of the outcome of the present application." The form of the question asked in the poll and an analysis of the responses given by a random sample of 301 people in the Melbourne area are described at length in the judgments of Crockett J. and the members of the Court of Criminal Appeal. The evidence of Mr Saulwick was that the poll indicated that some 33 to 45 per cent of the adult population of Melbourne had heard of the respondent's case in some form or another. Significantly, however, no respondent to the survey volunteered knowledge of a previous conviction of the respondent.

20. The second factor relied upon by McGarvie J. in concluding that there was a substantial risk that the jury had become aware of the respondent's prior conviction was the probability - as his Honour saw it - that, even if no member of the jury did in fact have knowledge of the prior conviction when empanelled on 14 May 1991, at least one juror would have learned of the conviction from discussion of the case by or with family, friends or others and would have passed this information to the other jurors before they retired to consider a verdict on 19 June 1991.

21. In our view, both these factors upon which his Honour relied are matters of mere conjecture or speculation. First, the inconclusive results of the random poll provided no evidence whatsoever to justify the conclusion that prospective jurors did not respond honestly and accurately to questions put by the trial judge. As already mentioned, the random poll did not record even one respondent out of the 301 persons interviewed who recalled a conviction. The evidence of the poll indicated that people knew about the case in a general, vague way but did not have knowledge of the prior conviction. This is hardly surprising given the passage of over four years between Hinch's final broadcast and the poll. And, in any event, even if the poll had recorded that one or more respondents recalled a conviction, we would have difficulty in accepting that that provided a basis for concluding that prospective jurors concealed their knowledge of a conviction from the trial judge when he asked them a direct question about that knowledge. As Street C.J. stated in Murdoch (14) (1987) 37 A Crim R 118, at p 126:
"There must be a sound basis made out on a prima facie
footing to anticipate the probability (of) prejudice on the part of an individual juror."

22. Likewise, the suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent's prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J. observed in Hinch (15) (1987) 164 CLR, at p 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v. The Queen, we stated (16) (1989) 167 CLR 94, at p 99; see also Reg. v. Von Einem (1990) 55 SASR 199, at p 211:
"But it is misleading to think that, because a juror has
heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in Reg. v. Hubbert (17) (1975) 29 CCC (2d) 279, at p 291: 'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.'" To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.

23. After the jury had been empanelled, the trial judge instructed them in these terms:
"Because you sit as judges of the facts, you are, not
unnaturally, expected to behave as a judge is expected to behave and that is to decide the case before you according to the evidence. You have sworn to do so and that is your duty. That means that you put out of your mind such matters as prejudice, sympathy or bias or any other emotive consideration. What we ask of you is the academic exercise of bringing your minds to bear upon the evidence as it unfolds before you." At the commencement of his charge to the jury, the trial judge instructed them in similar terms. In the absence of evidence establishing some departure from established procedures, such as, for example, improper conduct by a juror, it is not legitimate to infer that the jury did not comply with the trial judge's direction.

24. Knowledge of an admissible prior conviction for a similar offence stands in a different position from other prejudicial information. Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law (18) Maxwell v. The Director of Public Prosecutions (1935) AC 309, at p 317. And the wrongful reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk. It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial (19) Reg. v. George (1987) 9 NSWLR 527, at p 533. and, if the trial proceeds and results in a conviction, for a court of criminal appeal to decide whether the accused has been deprived of a fair trial. But it is important to distinguish between cases in which the jury are made aware of a prior conviction during the course of a trial and cases in which such awareness is not established. As McGarvie J. acknowledged, "(t)here is not an absolute insistence by the law that a jury have no knowledge of a prior conviction of an accused on trial". His Honour went on to conclude that this case was exceptional because the prior conviction was for an offence of the same nature as the offences charged. However, this conclusion is not to the point in the absence of a legitimate finding that there was a likelihood of awareness of the conviction or at least a substantial risk of awareness.

25. In our view, the approach adopted by the majority in the Court of Criminal Appeal, in finding that there was a substantial risk that the jury were aware of the applicant's prior conviction and that the verdict was unsafe and unsatisfactory on that score, disregarded the principled decision of Crockett J. The majority's reasoning was also based on materials which could not support the inferences drawn, took little, if any, account of the effect of the trial judge's instructions and disregarded the community's right to expect that a person accused of a serious criminal offence will be brought to trial. The last-mentioned consideration requires that a conviction be quashed as unsafe and unsatisfactory only where the materials justify a conclusion that there was a likelihood or substantial risk of prejudice arising from pre-trial publication where the conviction is challenged on that ground.

26. The judgment of Nathan J. is subject to criticism on a further ground. His Honour suggested that Crockett J. was unmindful of the judgments of the members of this Court in Hinch in so far as they concerned the possibility of the respondent obtaining a fair trial and the duration of the prejudice which attached to Hinch's comments. While Nathan J. acknowledged that the context of this Court's decision in the earlier contempt of court case was different from the position which faced Crockett J., Nathan J. considered that the issue was "essentially the same" and that this Court's decision in Hinch virtually compelled the conclusion that a fair trial for the respondent could not be assured for "a considerable period for the future".

27. His Honour was mistaken in drawing so much from this Court's decision in Hinch. Contempt of court arising from pre-trial publication, on the one hand, and appeals from conviction or from a refusal to order a stay based on pre-trial publication, on the other, differ in at least one important respect. A finding of contempt in such a situation depends upon proof that the publication has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the administration of justice, that is, to prejudice a fair trial (20) That was the test applied by a majority of the Court in Hinch (1987) 164 CLR, at pp 34, 47, 70; but cf. pp 23-25. The question whether a contempt has been committed has "to be determined at the time of publication and not by reference to subsequent events", as Toohey J. observed in Hinch (21) ibid., at p 70; see also Attorney-General (N.S.W.) v. John Fairfax and Sons Ltd. and Bacon (1985) 6 NSWLR 695; Reg. v. Pacini (1956) VLR 544; Reg. v. David Syme and Co. Ltd. (1982) VR 173. That time may be well in advance of the actual trial and even before the date for trial is known. Thus a conviction for contempt depends upon findings of fact and inferences drawn at that time on the basis of evidence then available.

28. On the other hand, a permanent stay will only be ordered in an extreme case (22) Jago (1989) 168 CLR, at p 34. and there must be a fundamental defect "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences" (23) Barton (1980) 147 CLR, per Wilson J. at p 111. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.

29. Nathan J. appears to have overlooked this distinction. His Honour stated that the prior finding of contempt by Hinch is "not compatible with the conclusion that a fair trial could follow" (emphasis added). This is incorrect. Appeals against conviction on the ground of an unfair trial have failed despite a prior finding of contempt arising from pre-trial publication (24) e.g., Reg. v. Thomson Newspapers Ltd. (1968) 1 WLR 1; (1968) 1 All ER 268 and Reg. v. Malik (1968) 1 WLR 353; (1968) 1 All ER 582. These decisions have been criticized on the ground of inconsistency (25) See Barendt, Freedom of Speech, (1985), p 225. But that criticism ignores the distinction already discussed. It has never been the law that an essential element in contempt is that the defendant's publication has precluded a fair trial.

30. The distinction already made does not touch one aspect of Hinch. That is the conclusion reached by a majority of this Court that the publicity gave rise to a substantial risk of real prejudice (26) (1987) 164 CLR, at pp 32, 45. or "the very real possibility that the publications would adversely interfere with the due administration of justice" (27) ibid., per Deane J. at p 55. That conclusion, however, was reached in a context in which it was contemplated that the trial would be held three and a half years earlier than it was actually held. That time span made a vital difference, particularly in relation to something as ephemeral or transient as radio broadcasts.

31. For the reasons stated, the majority in the Court of Criminal Appeal were in error in departing from the discretionary judgment of Crockett J. and in holding that there had been a miscarriage of justice. We would therefore grant special leave to appeal, allow the appeal and set aside the orders made by the Court of Criminal Appeal.

32. As that Court dealt with two only of a number of grounds advanced by the respondent in support of his application for leave to appeal against both conviction and sentence, it is appropriate that the matter be remitted to the Court of Criminal Appeal to enable the outstanding grounds of appeal to be considered.

BRENNAN J. After a trial in the County Court of Victoria the respondent, a Roman Catholic priest who has been suspended from his ministry, was convicted of five sexual offences against young people who were members of a youth group of which he was the founder and director. On 14 May 1991 he was arraigned on 17 counts of that description. By verdicts returned on 19, 20, 21 and 22 June 1991, the jury acquitted him on 12 of those counts. The offences for which he was convicted were an indecent assault on a girl under the age of 16 years, two indecent assaults on boys under the age of 16, an attempted buggery with a boy under the age of 14 and buggery with violence and without consent. The respondent appealed to the Full Court of the Supreme Court of Victoria against his conviction. A majority of the Court (McGarvie and Nathan JJ., Southwell J. dissenting) held that, by reason of extreme publicity prejudicial to the respondent prior to the trial, the trial should have been permanently stayed. The Court quashed the convictions but no new trial was ordered. The Court ordered that verdicts of acquittal be entered. It is against this judgment that the Crown seeks special leave to appeal.

2. The counts on which the respondent was arraigned alleged offences committed between 1 January 1977 and 31 December 1980 but the respondent was not charged with any of those offences until 8 November 1985. The alleged offences came to the attention of the police after publicity had been given to a court case in which two young men, one of them the respondent's nephew, were convicted of assaulting the respondent. In the course of his cross-examination in that case, the respondent admitted that he had been convicted and imprisoned in 1978 for indecent assault. It was put to him, but denied, that at a youth camp in 1978 he had committed homosexual rape on one of those charged with his assault, a youth named Hood. After the police had interviewed him, the respondent was charged on 12 November 1985 with several of the offences on which he was subsequently arraigned. In March 1986 he was charged with more of the offences on which he was subsequently arraigned.

3. On 13 November 1985, a broadcast from a Melbourne radio station by one Hinch publicised not only the respondent's 1978 conviction and sentence for the offence of indecent assault but also the fact that the prosecution had accepted his plea of guilty to that charge on a presentment charging him with rape. Hinch informed his listeners that the respondent had also been charged and acquitted in September 1984 "of rape of a 12-year old boy". (Nathan J. noted that before the respondent had been charged with offences of that kind in 1984, there had been some lurid press reports of allegations made against the respondent.) Hinch described the charges pending against the respondent at the time of the broadcast and expressed outrage that a man could "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". Hinch returned to the subject on 15 November 1985, asking "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?" On 11 March 1986, after the respondent had been charged with further offences, Hinch made a broadcast stating this fact, restating the history of the respondent's charges and re-expressing his outrage in terms similar to those that he had employed on 13 and 15 November 1985. Hinch was not deterred by the fact that, shortly before the third broadcast, the Attorney-General for Victoria had commenced proceedings against him and the licensee of the radio station for contempt of court. After the broadcast of 11 March 1986, the Attorney-General commenced further proceedings against Hinch and the licensee for contempt of court.

4. The respondent was committed for trial on 1 September 1986, but no presentment was filed until 18 December 1987. In the meantime, Hinch had been convicted on two counts of contempt of court, sentenced to a brief period of imprisonment and fined; he had appealed unsuccessfully to the Full Court against his conviction but the Full Court reduced his sentence and fine; he had obtained special leave to appeal to this Court and, after that appeal was dismissed (28) Hinch v. Attorney-General (Vict.) (1987) 164 CLR 15, he served a short period in prison. Each of these steps was attended with a full glare of publicity, much of which was calculated to portray Hinch as a martyr to the cause of exposing the evil character of the respondent and the danger the respondent posed to young people. The martyr's image did not preclude an argument on Hinch's behalf that his pollution of the stream of criminal justice would be dissipated by the time of the respondent's trial. That argument was rejected, though it was not then foreseen that the respondent's trial would be delayed for as long as it was. The trial did not begin until 5 years had elapsed since Hinch's broadcasts in November 1985 and March 1986 and 3 1/2 years since Hinch was released from prison. Hinch was released from prison on 26 October 1987.

5. The respondent first appeared in the County Court on 1 August 1988 when an application was made to Judge Harris to stay proceedings against the respondent permanently on the grounds of inordinate delay and ineradicable prejudice. Judge Harris refused the application. An application to review that decision was made to the Supreme Court. After argument before a single Judge and before the Full Court, it was held that the Supreme Court had jurisdiction to review Judge Harris' decision. Crockett J. then heard and dismissed the application for review on 25 July 1990. It was argued that publicity had made it impossible for the respondent then to receive a fair trial and that the delay required to allow the prejudicial effect of the publicity to be spent would be so gross as to be untenable. His Honour dismissed the application. He pointed out that, when the contempt proceedings were heard, it was not expected that the time which would elapse between the date of Hinch's release from prison and the commencement of the respondent's trial would be as long as it was. During that period, his Honour noted, references to the respondent in the media were "quite negligible". Though he thought that public feeling had run high three or four years before, a public opinion poll commissioned by the respondent had revealed a noticeable "lack of passion" in the replies of those interviewed although there were expressions of abhorrence at the nature of the alleged offences.

6. The trial was brought on ultimately before Judge Neesham on 6 May 1991 when a further application for a permanent stay was made. Judge Neesham dismissed that application, correctly observing that no change in circumstances, other than the passage of time, had occurred since Crockett J. refused to grant a permanent stay.

7. Before the respondent was arraigned on 14 May 1991, Judge Neesham had the members of the jury panel divided into two groups and, bringing one group at a time into the courtroom, he outlined the charges against the respondent, stated that the respondent was a Catholic priest at the time of the alleged offences but had since "resigned from that office" and that the respondent was at the time the governing director of a youth organization. Judge Neesham mentioned the places where the offences were alleged to have occurred, the names of the alleged victims and other witnesses. His Honour then addressed each group in the words following or to like effect:
" If anybody among you knows any of the persons that I

have named or believe that you may know anything about the circumstances of this case or have heard anything about the circumstances of this case, would you kindly hold your hand up?" Two members of the jury panel who indicated some knowledge of the case were excused. A jury was empanelled and the trial proceeded. Judge Neesham conducted the trial in a manner which McGarvie J. described as:

"best calculated to have the charges heard and decided by a jury which did not have or acquire, and was not influenced by, impermissible knowledge such as knowledge of the prior conviction of the (respondent)".

8. Every reasonable precaution was taken by the trial judge to ensure that the jurors would not be affected in their verdict by the considerable public vilification of the respondent in earlier years. The trial was conducted according to law. The jury returned its verdicts after separate consideration of each count. The verdicts on the several counts contained in the presentment discriminated between the 5 counts on which the evidence was sufficient to satisfy the jury of the respondent's guilt beyond reasonable doubt and the 12 counts on which the jury was not so satisfied. Yet a majority of the Full Court found that there had been a miscarriage of justice. Indeed, the Full Court would have had no jurisdiction to interfere with the verdicts of guilty unless it had found that a miscarriage of justice had occurred, for s.568(1) of the Crimes Act 1958 (Vict.), following the standard form of the statute relating to criminal appeals, provides relevantly:
" The Full Court on any such appeal against conviction
shall allow the appeal if it thinks .. that on any ground there was a miscarriage of justice ..."

9. McGarvie J. concluded that there was a miscarriage of justice "because of the substantial risk that the jury knew of the (respondent's) earlier conviction and sentence and were prejudiced against him as a result". It followed, in his Honour's view, that the verdicts were unsafe and unsatisfactory and that the convictions should be quashed. Nathan J. stated the question which he addressed in these terms:
"I am not here deciding the issue of the fairness of the trial process, but the fairness of conducting the trial in the first place."

His Honour decided that issue as follows:

"My obligation is to decide whether at the time the application for a permanent stay was made, the prejudicial aftermath of Hinch's contempts was likely to have infected potential jurors to the extent that a fair trial could not be assured. I am of that opinion. It follows that I find the learned trial judge failed to exercise his discretion correctly, and the same must be said of Crockett J.'s exercise. It also follows I find the verdicts are unsafe and unsatisfactory. These grounds of appeal should be upheld and the convictions quashed, and verdicts of acquittal entered."

10. The grounds advanced by their Honours for quashing the convictions present starkly the problem which pre-trial publicity prejudicial to an accused raises for the administration of criminal justice. The problem is not new, but perhaps it has become more acute in recent times. One developing phenomenon is the holding of press conferences or the issuing of press releases by some law enforcement agencies after a person has been charged with a criminal offence, in apparent disregard of the risk that the fair trial of the person may be prejudiced unless the matter published is restricted to what this Court in Packer v. Peacock (29) (1912) 13 CLR 577, at p 588. described as the "bare facts" - by which the Court meant "(but not as an exclusive definition) extrinsic ascertained facts to which any eyewitness could bear testimony, such as the finding of a body and its condition, the place in which it is found, the persons by whom it was found, the arrest of a person accused, and so on". Sometimes the holding of a press conference or the issuing of a press release wears the appearance of corporate advertising of the work of the agency in solving a crime. Advertising of that kind is inconsistent with the impartial performance of the functions of a law enforcement agency in conducting or assisting to conduct a criminal prosecution. Another phenomenon which has contributed to the problem in recent years, especially in the media of television and radio, is the promotion of personalities who affect to convey the moral conscience of the community and to possess information, insights and expertise in exceptional measure. The image of some media personalities as informers of the public and moulders of public opinion is assiduously cultivated. When the belief is held that the public interest is served by publication of observations and opinions by media personalities on topics of contemporary relevance, publication may not always be restrained by the need to allow a fair trial for a person charged with the commission of crimes that have attracted public attention. That happened in the present case.

11. Free speech is not the only hallmark of a free society, and sometimes it must be restrained by laws designed to protect other aspects of the public interest. Thus the law of contempt of court seeks to strike a balance between the two competing public interests which Mason C.J. identified in Hinch v. Attorney-General (Vict.) (30) (1987) 164 CLR, at p 18:
"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". In that case, the approach of Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (31) (1937) 37 SR(NSW) 242, at pp 249-250, approved in A-G. v. Times Newspapers (1974) AC 273, at pp 296-297, and by Gibbs C.J. in Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, at pp 59-60. was held applicable to the contempts committed by Hinch in respect of the present criminal proceedings (32) (1987) 164 CLR, at pp 18, 36, 46, 66, 82-83. Jordan C.J. said (33) (1937) 37 SR(NSW), at p 249:

" 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 follows that, in determining whether a punishable contempt has occurred, the court must balance the tendency of published matter or of the circumstances of its publication to prejudice the integrity of the administration of justice against the freedom to publish, especially on topics of public concern. In Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation, the balance lay in favour of publication of the proceedings of a Royal Commission; in Hinch v. Attorney-General (Vict.), the balance lay in favour of the integrity of the administration of justice.

12. The integrity of the administration of justice in criminal proceedings is of fundamental importance to a free society. Freedom of public expression with reference to circumstances touching guilt or innocence is correspondingly limited. In Hinch v. Attorney-General (Vict.), the boundary between legitimate public discussion of topics of public interest and discussion amounting to punishable contempt of court in the context of criminal proceedings fell for consideration. The boundary was defined in differing terms. Mason C.J. held the boundary to be crossed when the publication created a substantial risk of serious interference with a fair trial (34) (1987) 164 CLR, at pp 27-28. Wilson J. adopted the formulation of a real and definite tendency to prejudice or embarrass pending proceedings (35) ibid., at p 34; a similar formulation was adopted by Deane J. (36) ibid., at pp 54-55. and by Toohey J. (37) ibid., at p 70. Gaudron J. held that, to constitute contempt, there must be proof beyond reasonable doubt that the impugned conduct "poses a real risk to the administration of justice" though the court must decide as a matter of law whether any competing public interest "outweighs the degree of risk established" (38) ibid., at p 87.

13. From these formulations it appears that some degree of risk, albeit not a substantial risk, to the integrity of the administration of criminal justice is accepted as the price which has to be paid to allow a degree of freedom of public expression when it is exercised in relation to a crime that is a topic of public interest. Clearly enough, though the fairness of a criminal trial may be at some risk in such a case, the trial proceeds. If a punishable contempt occurs, ex hypothesi there is a real risk of prejudice - perhaps, to adopt the formulation by Mason C.J., a substantial risk of serious interference with a fair trial. But it does not follow that, where a punishable contempt of court has been committed, the trial must be aborted. If that were the consequence of punishable contempt, the penalties imposed for contempt would be far harsher than those presently imposed, for the contempt would totally defeat the enforcement of the criminal law and penalties for contempt would have to reflect that fact. Administration of the criminal law cannot be made hostage to conduct amounting to contempt of court, even if the contempt be flagrant. If it were otherwise, the perpetrators of crimes which shock the public conscience, such as those charged in Murphy v. The Queen (39) (1989) 167 CLR 94, would oftentimes go untried and unpunished, for pre-trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime. Yet it would undermine the criminal law's protection of society and its members to refuse to allow the law to take its ordinary course in these cases. The administration of criminal justice by the courts, which proceeds inexorably to its conclusion in each case, would be adventitious if trials could be halted by a punishable contempt. In cases where a punishable contempt is committed - at least where the contempt is flagrant - public obloquy would be substituted for jury verdict and trial by media would supersede trial according to law. No community governed by law could acknowledge that persons outside the control of the State could possess such a capacity for disrupting the administration of criminal justice.

14. The law does what it can to protect the integrity of the criminal trial. In the forefront is the law relating to criminal contempt. If the protection given by that law should fail, the trial judge is given powers to adjourn the trial until the influence of prejudicial publicity subsides and is required to direct the jury that their verdict must be based on the evidence given before them on the trial and that, in reaching their verdict, they must disregard knowledge otherwise acquired and any revulsion against or sympathy for the accused. The trial judge may conduct the trial in whatever manner is appropriate (within the ordinary procedural constraints) to counter the effect of pre-trial publicity prejudicial to an accused. However, these protective mechanisms cannot guarantee perfect impartiality, as Mason C.J. and Toohey J. recognized in Murphy v. The Queen (40) ibid., at p 101:
"It may be said that there can be no guarantee that
directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful. That is true just as it is true that there can be no guarantee that a juror may not have been influenced by other matters of which he or she has heard before the trial."

15. Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts (41) Vaitos (1981) 4 A Crim R 238; Gallagher (1987) 29 A Crim R 33, at p 41. is that the reliance is not misplaced. In Munday (42) (1984) 14 A Crim R 456, at pp 457-458, Street C.J. repeated an unreported passage from one of his Honour's earlier judgments:
"'.. it is relevant to note that the system of jury trial
is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury'." If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.

16. Crockett J. refused the application for a permanent stay of the proceedings pending against the respondent consistently with the approach I have indicated. The critical part of his reasons reads as follows:
" The central point, of course, is whether a fair trial
can take place having regard to the power of the trial judge to eliminate or neutralise those considerations which otherwise might operate unacceptably to the prejudice of the plaintiff. Mason C.J. in Jago v. District Court (N.S.W.) (43) (1989) 168 CLR 23, at p 34, after stating that 'a permanent stay should be ordered only in an extreme case', went on to cite with approval the observation of Wilson J. in Barton v. The Queen(44) (1980) 147 CLR 75, at p 111. that '.. to justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences".' Again in Jago Brennan J. dealt with this aspect of the matter in a paragraph (at p 47) which should be set out in full. His Honour said: 'Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v. The Queen), adverse revelations in a public enquiry (Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation), absence of competent representation (McInnis v. The Queen(45) (1979) 143 CLR 575; MacPherson v. The Queen(46) (1981) 147 CLR512),. or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.' I am not persuaded that the plaintiff's trial, if allowed to proceed, will be unfair. The judge will exclude evidence if he considers its probative value is outweighed by its prejudicial effect. More importantly, he will be astute to impress upon the jury by directions carrying the weight of his judicial authority the need for it to exclude prejudice, to bring an open mind to the discharge of its duty, to confine its consideration to evidence given at the trial, to exclude from its consideration anything that it may have read or heard about the matter before the commencement of the trial and to bring a dispassionate and objective mind to bear upon the resolution of the issues. There is no reason to think that a jury so directed will not heed and act upon such directions." In my respectful opinion, his Honour's conclusion was clearly right either on the ground that the present case is not an "extreme case" or on the ground - which, in my respectful opinion, is a ground better founded on principle and more realistic in practice - that the trial of the applicant, provided it was as fair as the Court could make it, would produce no miscarriage of justice. The appeal to the Full Court after conviction was in substance though not, of course, in form, an appeal against the decision of Crockett J. (47) Boehm v. Director of Public Prosecutions (1990) VR 494.

17. In the Full Court, McGarvie J., having found that there was a substantial risk (i) that information of the respondent's 1978 conviction was possessed by the jury and (ii) that the jury were prejudiced against him as a result, held that there had been a miscarriage of justice. His Honour failed, in my respectful view, to appreciate the significance of the jurors' silence when Judge Neesham asked whether the jurors knew anything of the circumstances of the offences which he had outlined to them. Moreover, his Honour did not attribute any or sufficient weight to the jury's capacity and willingness especially in a lengthy or complex trial, to refuse to act on information not proved by the evidence (48) A capacity which has been judicially acknowledged: Duff v. The Queen (1979) 39 FLR 315, at pp 333-334; (1979) 28 ALR 663, at pp 677-678; A-G NSW v. John Fairfax and Sons and Bacon (1985) 6 NSWLR 695, at p 711; Attorney-General v. News Group Newspapers Ltd. (1987) QB 1, at p 16; Hinch v. Attorney-General (Vict.) (1987) 164 CLR, per Toohey J. at p 74; Reg. v. Von Einem (1991) 55 SASR 199, at p 211.

18. Nathan J. came to the same conclusion as McGarvie J. and for similar reasons, but his Honour added a further reason:
" The courts have found Hinch's contempts, because
they had a tendency to jeopardize Glennon's fair trial, warranted his imprisonment. That result is not compatible with the conclusion that a fair trial could follow, not merely as a possibility, but as certainly as the court can guarantee (to adapt the language of Brennan J. in Jago). The law relating to pre-trial publicity and contempts would mean nothing, if the prejudice engendered by the contemnor was always found to be remediable by a warning from the judge." His Honour was mistaken in thinking that unless there was a guarantee that prejudice engendered by a contemnor would be remediable by a warning, the trial had to be aborted. For reasons earlier advanced, I do not think that that is the law. Crockett J. applied the law correctly, as Southwell J. perceived. Southwell J. was, in my respectful view, right in holding that the risk of a juror's knowing of the respondent's 1978 conviction was outweighed by the interests of the community in ensuring that a prosecution for the serious offences charged against the respondent was pursued provided, of course, that the trial judge took all appropriate steps available to him to secure a fair trial.

10. Special leave to appeal should be refused.

DAWSON J. I agree with Brennan J. and have nothing to add.

Orders

Application for special leave to appeal granted.

Appeal allowed.

Set aside the orders of the Court of Criminal Appeal.

Remit the matter to the Court of Criminal Appeal for consideration of the outstanding grounds of appeal.