R v Haydon (No 1) - [2004] SASC 437

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
In the Matter of A REGISTRAR'S SUMMONS ALLEGING CONTEMPT BY THE ADVERTISER NEWSPAPER PTY LTD
R v HAYDON (No 1)
Reasons for Ruling of The Honourable Justice Sulan
23 December 2004
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - CONTEMPT - WHAT CONSTITUTES - INTERFERENCE WITH COURSE OF JUSTICE AND ADMINISTRATION OF LAW - PREJUDICING FAIR TRIAL OF ACCUSED - NEWSPAPER, RADIO OR TELEVISION REPORT
Article published in The Advertiser Newspaper - published proceedings in the course of the trial and in the absence of the jury - inaccurate reporting - whether the report had a tendency to interfere with the due process of justice - whether a Registrar's Summons for contempt should issue.
Attorney-General v BBC & Hat Trick Productions [1997] EMLR 76; Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] NSWLR 362; Attorney-General (NSW) v John Fairfax & Sons & Bacon (1985) 6 NSWLR 695; Hinch v The Attorney-General (Vic) (1987) 164 CLR 15; R v David Syme & Co Ltd [1982] VR 173, considered.

R v HAYDON (No 1)
[2004] SASC 437

SULAN J On Wednesday, 10 November 2004, the Advertiser Newspaper Pty Ltd (“the Advertiser”) published an article under the headline “Haydon to Take Stand”. The headline also included the words, “Secrecy Ends on Alleged Snowtown Killer”. The article was written following an intimation by counsel for the accused that her client may be likely to give evidence. That intimation was made in response to question by me, and in the absence of the jury. Counsel made it clear that she did not wish to bind her client until the defence case commenced the next day. She said:
“I’m intimating to your Honour that my client is likely, can I put it as high as that, to assist the court, out of courtesy, to give evidence tomorrow. It depends what happens in cross-examination what other witnesses are likely to be called”.
I responded that I understood it was an intimation only, and the position might change when she obtained final instructions. That exchange resulted in the headline to which I have earlier referred and, in my view, was misleading in that a reader of the headline could conclude that a final decision had been made by Mr Haydon to give evidence.
The article which appeared under the headline contained a number of inaccurate statements. They included:
“They [referring to the prosecution] also say he played a role in the murders of Michael James Gardiner, Barry Wayne Lane, Gavin Allan Porter, Frederick John Brooks, Gary O’Dwyer and David Terrence Johnson.”
The article further stated:
“The prosecution had alleged Haydon murdered his wife because he was concerned she would ‘expose’ his involvement in the killings”.
The two references which I have quoted above were inaccurate. At the trial, it was never the prosecution case that Mr Haydon was involved in the murders of those people who were named. It was the prosecution case that he became involved after the murders by assisting Mr Bunting and Mr Wagner to hide and transport the bodies in barrels with the intention of them avoiding apprehension or prosecution.
Furthermore, the suggestion that it was the prosecution case that Mr Haydon murdered his wife because he was concerned she would expose his involvement in the killings is inaccurate. The prosecution in opening stated:
“It is alleged that in those circumstances Elizabeth Haydon posed a risk to all of those involved in the murder, a risk that they would be exposed”.
It was never part of the prosecution case that Elizabeth Haydon posed a risk to Mr Haydon, as he was not involved in the murder and, therefore, the suggestion that he murdered his wife because his involvement might be exposed is inaccurate and not supported by the evidence.
Counsel for Mr Haydon complained about the article and submitted that it might prejudice his fair trial. She was reinforced in her complaint about the article, because there had been an earlier article on 3 August 2004 when it was reported that:
“Haydon is accused of assisting in the murders of Michael James Gardiner, Barry Wayne Lane, Gavin Allan Porter, Frederick John Brooks, Gary O’Dwyer and David Terrence Johnson”.
At that time counsel complained that that article was misleading, in that a reader might conclude that it was alleged that Mr Haydon was involved in the actual murders, whereas that was never part of the prosecution case against him. At that time, I directed the jury that the article was misleading, because it misreported the prosecution opening. The report was inaccurate and also contained information from the earlier trial of Bunting and Wagner, which was not proposed to be led in evidence at the Haydon trial.
I determined to give the jury a direction about the subject article, and to repeat my earlier direction to the jury that they should not rely on any information which is reported about the trial and that they should only rely on evidence heard in court.
The question arises whether I should direct the Registrar of the Supreme Court to issue a summons pursuant to Rule 93.03 upon the Advertiser for contempt.
Mr Short, for the Advertiser, submitted it was not and could not be a contempt, as there was not a real and substantial risk of prejudice to a fair trial. He accepted that in a number of respects the article was inaccurate and he apologised on behalf of his client for the inaccuracy. He said any mistake or misreport occurred in good faith, and that I should, therefore, exercise my discretion not to direct the issue of a summons.
An individual’s right to a fair trial is a fundamental right which is the foundation of our criminal justice system. Freedom of expression is also a basic right which is fundamental to our system of democracy. Balancing the right of an individual to a fair trial and the right of the public to be informed can, on occasions, be a difficult exercise. In Hinch v The Attorney-General(Vic)[1] Deane J said:
“The right to a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law”.
[1](1987) 164 CLR 15 at 58
The misreporting of proceedings can have the potential for causing injustice and prejudicing a fair trial. The presumed vulnerability of jurors is a rationale of the exclusionary rules of the laws of evidence, and if the jury learn via media reports matters of which it must or should not be informed, then that may have the effect of prejudicing a fair trial. That is why it is customary not to report evidence or legal argument conducted in the absence of the jury.
The power to punish for contempt of court is to protect and preserve the system of justice administered by the court; see R v David Syme & Co Ltd.[2] Marks J referred to the observations of McRuer CJ in the High Court of Ontario.[3] He said, in referring to McRuer CJ’s judgment that “… the fundamental principle is that the administration of justice is carried on ‘as a process of orderly government’ and the law of contempt does not exist for the protection of judges but for the protection of the individual right of every citizen to an independent administration of justice free from influence or intimidation by improper conduct of any sort”.[4]
[2][1982] VR 173
[3] 30 Canadian Bar Review at 227
[4][1982] VR 173 at 177
In order to constitute a contempt, the publication must tend to pervert the course of justice or to prejudice the prosecution or defence in a trial.
In Attorney-General (NSW) v John Fairfax & Sons Ltd,[5] the court observed that:
“Contempt will be established if a publication has a tendency to interfere with the due administration of justice in the particular proceedings.
…
If the publication is of a character which might have an effect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so remote or theoretical that the de minimus principle should be applied”.
[5][1980] NSWLR 362 at 368
There is a further question that arises if a contempt has been established, that being whether the court should exercise its summary jurisdiction to punish the publisher. It is at that stage that the court has regard to the question whether the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case; see Attorney-General (NSW)v John Fairfax & Sons & Bacon.[6]
[6](1985) 6 NSWLR 695 at 708 per McHugh JA
The ultimate decision is essentially a value judgment. In Attorney-General v BBC & Hat Trick Productions Ltd[7], Auld LJ said:
“The degree of risk of impact of a publication on a trial and the extent of that impact may both be affected, in different degrees according to the circumstances, by the nature and form of the publication and how long it occurred before trial. Much depends on the combination of circumstances in the case in question and the Court’s own assessment of their likely effect at the time of publication. This is essentially a value judgment for the Court, albeit that it must be sure of its judgment before it can find that there has been contempt. There is little value in making detailed comparisons with the facts of other cases”.
[7][1997] EMLR 76
The publication in question was, in my view, inaccurate. It appeared during the course of the trial. The headline, inaccurately referred to an intimation made to me in the absence of the jury. It had the potential to embarrass the accused, who had not given final instructions as to the presentation of his defence. If his ultimate instructions had been that he did not wish to give evidence, the headline may well have prejudiced his trial in that it could have been interpreted that he had decided not to reveal his side of the story. If Mr Haydon had decided not to give evidence, the potential prejudice to him would have been that a juror could have reasoned that he had chosen to maintain a wall of secrecy around the events relating to the Snowtown murders.
The passages in the body of the article which suggested that he had played a role in the murders of Gardiner, Lane, Porter, Brooks, O’Dwyer and Johnson was inaccurate. It is disturbing that the attention of the media had been drawn to the inaccuracy in the earlier report of 3 August 2004, and that inaccuracy was repeated in the later article.
In my view, the reporting of the proceedings was careless and inaccurate reporting. I accept there was no deliberate act to interfere with the proper administration of justice. I am entitled to have regard to whether the conduct has been contumacious. Nevertheless, the article and headline showed a reckless disregard to the obligation to fairly and accurately report proceedings without creating prejudice to a fair trial. I have given consideration to all the circumstances. At the time the report appeared, the jury had been hearing evidence for some months and had been directed that they should rely solely upon the evidence in the case. They had observed the process of witnesses being examined and cross-examined. They had been directed to concentrate and rely only on evidence in the trial. They had been made aware that newspaper reporting is not always complete or accurate. As a matter of practical reality, the report, albeit inaccurate and misleading, on balance would not have had a tendency to interfere with the due process of justice. I have decided not to direct the Registrar to issue a summons to the Advertiser alleging contempt.