Re Coroner's Court of Western Australia; Ex parte Porteous
[2002] WASCA 144
•4 JUNE 2002
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
TITLE OF COURT : THE FULL COURT (WA)
| CITATION | : | RE CORONER'S COURT OF WESTERN AUSTRALIA; EX PARTE PORTEOUS [2002] WASCA 144 |
| CORAM | : WALLWORK J |
STEYTLER J WHEELER J
| HEARD | : 20 FEBRUARY 2002 | ||
| DELIVERED | : 4 JUNE 2002 | ||
| FILE NO/S |
| ||
| MATTER |
|
and
Inquest into the death of LANGLEY GEORGE
HANCOCK
EX PARTE
ROSEMARIE PORTEOUS
Applicant
AND
ALAN CAMP
Contemnor
[2002] WASCA 144
Catchwords:
Contempt of court - What constitutes - Pending proceedings - Coronial inquest - Coroner's refusal to permit counsel to read from exhibited document in open court - Document summarising events relating to parties - Distribution of copies of document to media by solicitor after directions hearing - Publication by media - Inherently sensational nature of document
Contempt of court - What constitutes - Pending proceedings - Intention of contemnor - Relevance
Contempt of court - What constitutes - Pending proceedings - Public prejudgment of issues to be determined in court proceedings - Whether conduct has real and definite tendency to prejudice administration of justice - Protection of parties from need to participate in pre-trial publicity - Effect on witnesses - Trial by media - Freedom of speech - Relevance of intention
Legislation:
Nil
Result:
Application dismissed
Category: A
Representation:
Counsel:
| Applicant | : | Mr J W K Burnside QC & Mr D G Collins |
| Contemnor | : | Mr C L Zelestis QC & Mr D Atkins |
Solicitors:
| Applicant | : | Slater & Gordon |
| Contemnor | : | Butcher Paull & Calder |
[2002] WASCA 144
Case(s) referred to in judgment(s):
Attorney-General (New South Wales) v Willesee [1980] 2 NSWLR 143
Attorney-General (NSW) v Dean (1990) 20 NSWLR 650
Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362
Attorney-General v Butterworth [1963] 1 QB 696
Attorney-General v Hislop [1991] 1 QB 514
Attorney-General v Mirror Newspapers [1980] 1 NSWLR 374
Attorney-General v Times Newspapers Ltd [1974] AC 273
Attorney-General v Tonks [1939] NZLR 533
Bell v Stewart (1920) 28 CLR 419
Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39
NSWLR 540
Director of Public Prosecutions v Wran (1986) 7 NSWLR 616
Ex parte Bread Manufacturers Ltd; Re Truth & Sportsmen Ltd (1937) 37 SR
(NSW) 242
Hamersley Iron Pty Ltd v Lovell & Anor (1998) 19 WAR 316
Harkianakis v Skalkos (1997) 42 NSWLR 22
Haughton v Smith [1975] AC 476
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
In Re Lonrho PLC [1990] 2 AC 154
John Fairfax & Sons v McRae & Ors (1955) 93 CLR 351
Lane v Registrar of the Supreme Court of New South Wales (Equity Division)
(1981) 148 CLR 245
Martin's Case (1747) 2 Russ and M 674; 39 ER 551
R v Castro's Case (Skipworth's Case) (1873) LR9 QB 230
R v David Syme & Co Ltd [1982] VR 173
R v Duffy; Ex parte Nash (1960) 2 QB 188
R v Glennon (1992) 173 CLR 592
R v Ingrams; Ex parte Goldsmith [1977] Crim LR 40
R v The Evening News; Ex parte Hobbs [1925] 2 KB 158
Re Ludlow Charities; Mr Lechmere Charlton's Case (1837) 2 My & Cr 316;
(1837) 40 ER 661; sc 6 Law J Rep (NS) Ch 185
Registrar of the Court of Appeal v Collins [1982] 1 NSWLR 682
Registrar of the Supreme Court, Equity Division v McPherson [1980] 1 NSWLR
688
Rowden v Universities Co-operative Association Ltd (1881) 71 LT Jo 373
Schering Chemicals Ltd v Falkman Ltd [1982] 1 QB 1
Shackles & Anor v The Broken Hill Pty Co Ltd & Anor; unreported; SCt of VIC
(Byrne J); Nos 5980, 6861 and 6862 of 1994; 16 November 1994
Smith v Lakeman (1856) 26 LJ (NS) Ch 305
The Prothonotary v Collins (1985) 2 NSWLR 549
[2002] WASCA 144
Victoria v Australian Building Construction Employees' and Builders Labourers'
Federation (1982) 152 CLR 25
Case(s) also cited:
Attorney-General for New South Wales v TCN Channel Nine Pty Ltd (1990) 20
NSWLR 368
Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 R v West Australian Newspapers Ltd & Ors; Ex parte Director of Public
Prosecutions (WA) (1996) 16 WAR 518
The Hon I W Smith v Harris & Ors [1996] 2 VR 335
[2002] WASCA 144
WALLWORK J
STEYTLER J
WALLWORK J: I agree with the reasons for judgment and the conclusions reached by Wheeler J.
There is nothing I wish to add.
STEYTLER J: I have had the considerable advantage of reading the reasons for decision proposed to be published by Wheeler J. Subject to one reservation, I agree with them, although I wish to add some comments of my own.
4 My reservation relates to the evidence of Mr Camp. As will be
apparent from what Wheeler J has said, the application arises out of Mr Camp's conduct in making available to representatives of the media a document, loosely described as a "chronology", which had been tendered at a directions hearing in respect of a coronial inquest to be held into the death of Mr Lang Hancock. The document contained a summary of evidence which was said by lawyers representing Mrs Gina Rinehart, Mr Hancock's daughter, to be relevant to the inquest. The summary encompassed many allegations of a sensational kind, including allegations that Mr Hancock's widow, Mrs Rose Porteous, had treated him very badly and that she had tried to hasten his death. Mrs Rinehart's legal team had attempted to read from the document in open Court, but the Coroner declined to allow them to do so. Mr Camp's conduct, in thereafter making the document available to representatives of the media, is said to have posed a real risk of interference with the administration of justice because it invited a public prejudgment of the issues to be decided by the Coroner and also because it had the potential to influence witnesses and potential witnesses.
5 As Wheeler J has pointed out, it has not been suggested that
Mr Camp consciously wished to interfere with the course of justice by causing publicity in the hope that it would influence the Coroner or witnesses. However, the applicant contends that his evidence that he did not believe that the contents of the so-called "chronology", or part of them, were likely to be republished as a result of his actions in giving it to representatives of the media should not be accepted. I regret to say that, unlike Wheeler J, I am not prepared to find that Mr Camp did not advert to that question at all, or that he assumed, without really considering the question, that the contents of the "chronology" would not be republished.
6 Mr Camp, who is a barrister, said, in his affidavit sworn on 30 March
2001, that he was questioned by journalists outside the Court, after having attended the directions hearing. After he had answered some questions
[2002] WASCA 144
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put to him by the assembled media representatives, the gathering of journalists began to disperse. He then spoke to two journalists that he knew personally and offered them the copy of the "chronology" that he had in his hand. He went on to say:
"I considered that what I said was off the record as not being part of the interview process. They each had had access to the witness statements and had not printed anything from the witness statements and I considered that in giving them a copy of the summary, it was understood that the contents were not for publication. I did not say this specifically to anybody. I was giving each journalist a copy of the summary pursuant to my commitment given a month or so prior. I recall advising a journalist I knew by the name Amanda from The Australian newspaper that if she wanted a copy, I could get one delivered to my Chambers and she could collect it there. The offer was made to two or possibly three other journalists. It was made subsequent to and separate from the interview process."
7 In the course of cross-examination at the hearing of the application
for his committal, Mr Camp acknowledged that he had, as he put it, been "brought in on this occasion to liaise with the press". He said that he had not read the "chronology", but that he knew that it contained a summary of the evidence proposed to be led by witnesses produced or identified by Mrs Rinehart. When asked whether he had a view whether the document could properly be published, he said that he believed that he had "thought clearly" that it "could not and should not". However, he acknowledged that he did not say to any one of the journalists to whom he gave the document that it should not be published. This, he said, was for two reasons. The first was that he had believed that the journalists had been in Court and had heard what the Coroner had had to say about the document. The second was that he believed that the journalists would know, "as a matter of their practice or their profession", not to publish anything that was not read or said in open Court.
8 As Wheeler J has pointed out, the Coroner had received the
"chronology", and some other documents which were annexed to it, as an exhibit, albeit on a somewhat limited basis. He did not say expressly that the contents of the document were not to be published. Rather, he said only that the then counsel for Mrs Rinehart should not be allowed to read from it in open Court at that stage.
9 In my respectful opinion, it is difficult to understand how anyone
could have been confident that none of the media representatives who
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were given a copy of the document would publish its contents. The document was no ordinary chronology. Indeed, it hardly satisfied that description at all. It was a highly selective collection of sensational material in respect of a matter which had attracted extraordinary interest on the part of the media. Also, Mr Camp had not, himself, been in Court throughout the directions hearing. It was apparent from what he said in the course of cross-examination that he could not have been confident in his assessment that those to whom he gave the document had been in Court. In fact, the journalist who arranged for the publication of some of the contents of the document had not been in Court at the material time. There was also the potential for a journalist or journalists to think that, because the document had become an exhibit, its contents could be published, no formal suppression order having been made. Notwithstanding all of this, Mr Camp, an experienced lawyer, gave no warning to any of those present that the contents of the document should not be made public. He did not even ask the journalists, some of whom were not known to him, whether they had heard what had transpired in Court. Moreover, all of this occurred against a background in which Mr Camp had, as I have said, been brought in by Mrs Rinehart to liaise with the press and to do what he could, as he put it, to meet a risk that the reporting of the inquest would be unfair from Mrs Rinehart's point of view.
10 Wheeler J has mentioned that Mr Camp had difficulty in articulating
how the provision of the material to journalists would be of any assistance to them if they were not to republish it. It is not surprising, in my opinion, that he should have had that difficulty. It is difficult, even, to know for what legitimate forensic purpose the document might have been tendered at that stage, or why counsel for Mrs Rinehart should then have sought to read from it, in open Court. The giving of evidence at the inquest was not imminent. Mr Camp acknowledged that, at the time, his expectation was that evidence would not be called at the inquest for at least another 6 to 12 months. Indeed, there was the prospect that some of the proposed evidence (part of which came from unidentified sources) would never be led at all, counsel for Mrs Rinehart having acknowledged that he could not "vouch for the complete integrity of all witness statements".
11 In all of these circumstances, the inference might be thought to be
irresistible that Mr Camp gave the document to the assembled media representatives because, the document having been tendered but leave to read from it in open Court having been refused, he wished, in this alternative way, to make the contents of the document known to them in the hope that one or more of them would publish its contents.
[2002] WASCA 144
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12 That said, it is, I think, unnecessary to express any final conclusion
in that respect because nothing turns, in my opinion, upon the question of Mr Camp's intention in this case, even if it had been said to amount to one to interfere with the administration of justice.
13 There is, as Wheeler J has mentioned, some controversy, in
Australia, as regards the relevance of intention in this context. It is settled that intention to interfere with the administration of justice is not necessary to constitute a contempt. However, there is also support to be found for the proposition that, where an intention to interfere has been proved, this has usually been sufficient to sustain a prosecution. Quite recently, in Harkianakis v Skalkos (1997) 42 NSWLR 22, Mason P, at 28, listed that proposition as one of several applicable general principles in the law of contempt. He mentioned, as examples of support for it, Smith v Lakeman (1856) 26 LJ (NS) Ch 305; Ex parte Bread Manufacturers Ltd; Re Truth & Sportsmen Ltd (1937) 37 SR (NSW) 242 at 248 - 249 and Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 43, before going on to say (ibid):
"It is not self-evident why this is so. Two possible explanations are that the court is applying the principle that a person who does an act with such intent is admitting a belief that he or she has a reasonable chance of success, with this admission being used as evidence of the fact (Attorney-General v Hislop [1991] 1 QB 514 at 535, per McCowan LJ. As to the general principle, see Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641 at 657); or that such a case involves an inchoate offence in the nature of attempt, where intent plus preparatory acts will be sufficient to sustain the charge."
14 In Smith v Lakeman the Court had to deal with a letter, written to a defendant in pending proceedings, to the effect that if the suit "should … go up for judgment", the defendant, Lakeman, would "at once be indicted for swindling, perjury, and forgery, and thus bring disgrace on … [his] family, and ruin forever the prospects of … [his] gallant son". He was urged to read the fifth chapter of Matthew, verses 25 and 26. Stuart VC said that, because the threat was for the purpose of intimidating Lakeman as a suitor, whether it had that effect or not, it was unquestionably a contempt of Court. The Vice Chancellor referred, in support of that proposition, to Re Ludlow Charities; Mr Lechmere Charlton's Case (1837) 2 My & Cr 316; (1837) 40 ER 661; sc 6 Law J Rep (NS) Ch 185 in which Lord Cottenham had said, "Every writing, letter or publication,
[2002] WASCA 144
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which has for its object to divert the course of justice is a contempt of the
Court."
In Bread Manufacturers, at 248 - 249, Jordan CJ said that:
"It is a well established general rule that any publication which has a tendency to interfere with the administration of justice by preventing the fair trial of any proceeding in a Court of justice is a contempt of court, and that if it is shown beyond reasonable doubt that such interference was either intended or likely, this Court will exercise its jurisdiction to punish summarily the criminal offence which is constituted by the contempt."
16 He referred, in support of this rule, to the authority of Bell v Stewart (1920) 28 CLR 419 at pp 430 - 432, in which Isaacs and Rich JJ discussed contempts by comments on cases pending in the Courts. They said that if the publication, besides having the "tendency" which constitutes a contempt (in the sense that "the nature of it - as distinct from its actual or even probable force in the specific circumstances - is such that prejudice might result"), is of such a character as makes it "calculated" (in the sense of "likely") to prejudice the defendant, the Court will interfere. Their Honours summarised the law, in the following way (page 432):
"(1) A publication referring to pending litigation is a technical contempt if it is one having a tendency to influence the result - this gives the Court jurisdiction to interfere; (2) The Court will not exercise its summary power of interference at the instance of a party unless, besides the tendency, the publication is likely to influence the result; (3) The Court adapts and proportions its remedy to the circumstances, wilfulness being for this purpose important, and imprisonment is reserved for extreme cases only."
Jordan CJ went on, in Bread Manufacturers, to say (at 249):
"When intention is established to interfere with the proper administration of justice by means of a publication which had a tendency to produce that result, a clear case of contempt is made out, calling for sharp punishment. Where the particular form of contempt complained of is the publication of matter which in fact has a tendency to prevent a fair trial by
[2002] WASCA 144
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prejudicing the parties to litigation in a Court of justice in conducting that litigation, if intention to cause such prejudice is established a serious case of contempt is at once made out, whether the publication refers to the subject matter of the litigation, or takes the form of mere general denigration of the party in question: Higgins v Richards 28 TLR 202; Ex parte Myerson; Re Packer and Smith's Weekly Publishing Co 39 WN 260; 4 Austn Digest 280. But if no such intention is established, the rule that the publication of matter tending, or even likely, to prejudice a party in conducting litigation constitutes a contempt of Court is not invariable."
18 In Hinch, at 42 - 43, Wilson J considered that "the decision whether to punish conduct alleged to constitute a contempt of court must depend, in the last resort, on the intention of the person charged and the nature and extent of the interference with the fair conduct of the legal proceeding". His Honour went on to say that if the interference was intended "and would otherwise justify condemnation by the court", there could be no question of any defence based on a submission that the publication in question was made in the course of a discussion of a matter of public importance, whereas, if the interference was unintended, and occurred in the course of a discussion of a matter of public importance, a balancing exercise would be appropriate.
19 In Attorney-General v Hislop [1991] 1 QB 514, defamation proceedings had been instituted by Mrs Sonia Sutcliffe, the wife of the so-called "Yorkshire ripper", against the magazine Private Eye. During the currency of those proceedings Private Eye published further articles to the effect that Mrs Sutcliffe had lied to the police and that she had defrauded the Social Security authorities. It was suggested that she would be cross-examined on these matters at the libel hearing. The Court of Appeal held that the magazine, and its editor, had committed both a statutory contempt (under the Contempt of Court Act 1981) and a common law contempt. The finding of common law contempt was based upon the fact that the articles were such as would inevitably blacken the name of their subject with the intention of subjecting her to pressure to abandon her claim. However, it appears to have been accepted, in that case, that there had been two issues for decision, the first being whether it had been proved by the standard of the criminal law that Private Eye intended to impede or prejudice the administration of justice either by attempting to prejudice the jury or to pressure Mrs Sutcliffe and the second being whether it had been shown, again by the standard of the criminal law, that
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there was a real risk of a fair trial being prejudiced (page 525, per
Parker LJ).20 McCowan LJ said, as has been pointed out by Mason P in
Harkianakis, that, since the editor of Private Eye, Mr Ian Hislop, intended by the articles to deter Mrs Sutcliffe from pursuing her claim, it seemed to him to be a matter of irresistible inference that Mr Hislop believed he had a reasonable chance of succeeding. He went on to say:
"I think he was right. In my judgment, there was a substantial risk that Mrs Sutcliffe would be so deterred and that in consequence the course of justice in the proceedings would be seriously impeded or prejudiced."
21 It seems to me that, while these cases support the proposition that,
where an intention to interfere with the course of justice in a particular case has been proved, this will usually be sufficient to sustain a prosecution, they do so, with one exception, in a manner which is consistent with the assumption that, in the case of a publication, the publication had a tendency to interfere in that way, although different approaches appear to have been taken as regards the issue of what will suffice as a "tendency".
22 In Smith v Lakeman, the letter to which I have referred undoubtedly had a real tendency to interfere with the proper administration of justice in the particular case. Stuart VC was also uncontroversial in commenting that the letter gave rise to a contempt, whether it had its intended effect or not. It was the tendency of the letter which was critical, and not its effect.
23 In Bread Manufacturers, Jordan CJ appears to have treated intention as a trigger for the exercise by a Court of its jurisdiction summarily to punish a contempt arising out of a publication which has a tendency to interfere with the administration of justice, being an approach similar to that which was taken in Bell.
24 It will be apparent from what was said by Wilson J in Hinch, at 42 - 43, that his Honour considered that intention was relevant to the question "whether to punish" conduct alleged to constitute a contempt, although his Honour also said, at 47, that a finding that the publication in fact has a clear tendency to prejudice the due administration of justice may well be more readily made in a case where the conduct was engaged in for that very purpose than in one where any such interference would be but an unintended and incidental side effect.
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25 In Hislop , as I have said, it was accepted that there were two issues for decision, one of them being whether it had been shown that there was a real risk of a fair trial being prejudiced. It was in that context that McCowan LJ found that Mr Hislop had been "right" in believing that he had a reasonable chance in succeeding in his endeavour to deter Mrs Sutcliffe from her claim.
26 The exception to which I have referred is Mr Lechmere Charlton's Case. I have mentioned that Lord Cottenham there said (2 My & Cr at 339; 40 ER at 670) that every "writing, letter, or publication which has for its object to divert the course of justice is a contempt of the Court". The Lord Chancellor was there dealing with an attempt to interfere in a particular case. A barrister had written a letter to a Master and to the Lord Chancellor on the subject of a pending suit. The Lord Chancellor said that the letter was so foolish that it could not be supposed to have any effect. Notwithstanding this, he considered that, if such cases were not punished, the most serious consequences might follow (pages 342 and 671 respectively).
That case does not stand alone in this respect. A similar decision was made in Martin's Case (1747) 2 Russ and M 674; 39 ER 551. Mr Martin, being a defendant in a suit in Chancery, wrote a letter to Hardwicke LC, enclosing a 20 pound banknote, suggesting that it be "applied and distributed for the relief of such of the poor prisoners in the Fleet prison as are the most proper objects of charity". As C J Miller: Contempt of Court, 3rd ed, has pointed out (par 7.98), Martin was fortunate not to join those "poor prisoners", having avoided that fate only because of his apparent contrition, coupled with his recent appointment as Mayor of Great Yarmouth. However, the offence of contempt was found to have been committed notwithstanding that it could hardly have been thought likely (by anyone other than Mr Martin) that the Lord Chancellor would have been influenced by his receipt of the money.
Then, in R v Castro's Case (Skipworth's Case) (1873) LR9 QB 230, another instance of an attempt to interfere with the administration of justice in a particular case, words were spoken publicly with the express purpose of prejudicing a trial by attacking witnesses and by attempting to prevent the Lord Chief Justice from presiding. This was held to constitute a contempt, even though the attempt was regarded as one which no-one "could ever imagine could be effectual at all" (p 236).
| 29 | In R v The Evening News; Ex parte Hobbs [1925] 2 KB 158, at 169, Lord Hewart CJ said that a newspaper publication gave rise to a contempt |
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"where one of two things happen - where matter is published which is intended to prejudice a fair trial; or where matter is published which is reasonably calculated to prejudice a fair trial". The proceedings had dealt with a newspaper publication in respect of a particular case.
More recently, in R v Duffy; Ex parte Nash (1960) 2 QB 188 at 197, Parker LCJ, speaking for the Court, said that the test was whether the publication "was intended or calculated to prejudice the fair hearing of the proceedings". However, in R v Ingrams; Ex parte Goldsmith [1977] Crim LR 40, doubts were cast on the sufficiency of intention alone, a contempt motion having been dismissed on the apparent ground that, in the absence of a real risk of prejudice, intent alone was insufficient to establish contempt.
31 The proposition that bare intention to interfere with a particular suit
is a contempt, even if there is no conduct having a tendency to do so, has
also found support in Australia.32 In Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362, at 369, the Court (Street CJ and Hope and Reynolds JJA), after having enunciated the principle that a contempt will be established if a publication has a tendency to interfere with the due administration of justice in the particular proceedings, went on to say:
"There is, however, another class of case where a publication will constitute contempt, even though the possibility of interference is remote or theoretical. These are cases where matter is published with the intention of interfering with the due administration of justice in the particular case. The same principle applies to other acts done with that intention. Thus a letter written to a judge trying a case, or a bribe offered to him, or an article published in a newspaper, will be contemptuous, if the act was done, or the publication made, with the intention of influencing the judge's decision in proceedings, even though the possibility that he will be influenced is remote or theoretical."
33 This passage was cited with approval by Moffitt P and Hope JA in
Registrar of the Supreme Court, Equity Division v McPherson (1980) 1 NSWLR 688 at 697. A similar approach was also adopted by Marks J in R v David Syme & Co Ltd [1982] VR 173 at 180, where his Honour said:
"I think the relevance of the state of mind of a person faced with contempt of court proceedings can be quite simply stated. Conduct with an intention to prejudice the proper trial of a legal
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proceeding or the administration of justice, if established, will constitute contempt of court (see Jordan, CJ: Bread Manufacturers Case, supra, at p 249). Even so, the court may, in the exercise of its discretion, not punish: see Davis v Baillie [[1946] VLR 486], at p 493.
It is not surprising therefore to find in the authorities proof of intention to prejudice being regarded as relevant to proof of contempt because, if not established, the court must look for other proof such as an inherent likelihood of prejudice. In other words, if the court is not satisfied that the publication had a real tendency to prejudice the fair trial of a legal proceeding or interfere in the administration of justice and there was no intention to that effect then there is no contempt."
34 Then, in Registrar of the Court of Appeal v Collins [1982] 1 NSWLR 682, the Court was concerned with a person who had handed out pamphlets to prospective jurors. Moffitt P, with whom Street CJ and Hope JA were in agreement, said (at 691):
"If the person handing out the pamphlets, did so intending that some should be received by jurors and influence their decision, there would be contempt even although it appeared that the possibility of a juror receiving one was remote or even although it appeared that what was done failed in its purpose, such as that the pamphleteer mistook the time of arrival of the jury, or that the jury was discharged or that the matter on which it was sought to prejudice the jury did not arise in the trial. In such cases the offence would be complete as soon as the pamphlets were handed out and before the court sat."
Moffitt P went on to say (at 695):
"The certain inference to be drawn in the present case is that the direct intention of the contemnor in handing out the pamphlets indiscriminately, at least was to influence jurors in some trial about to proceed in the Darlinghurst complex that morning. Without the need further to define the trial the subject of the distribution, this is sufficient to support a finding of contempt as charged. However, I think that the intent was to interfere with the trials on a wider basis."
36 Not long thereafter, the Court of Appeal in New South Wales
adopted a different approach in The Prothonotary v Collins (1985) 2
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NSWLR 549. This was another case in which leaflets were distributed to prospective jurors. However, on this occasion the Court held, by a majority (Kirby P and McHugh JA), that a contempt had not been proved. McHugh JA, while finding that the defendant had not intended to influence the outcome of any particular trial (the leaflets had referred to an allegedly general practice of "verballing" by the police), said (at 569) that it is always the objective act which must be likely to interfere with the course of justice and that intention, motive and purpose add to the case only when they give an otherwise neutral act the capacity to interfere with the course of justice. His Honour referred (ibid) to Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245, at 258, in which the Court (Gibbs CJ and Mason, Murphy, Wilson and Brennan JJ) had said, after referring to such cases as Rowden v Universities Co-operative Association Ltd (1881) 71 LT Jo 373 and Attorney-General v Butterworth [1963] 1 QB 696:
"… In those cases, the purpose, intention or motive of the act was to do the very thing that would interfere with the course of justice - to keep the witness out of the way or to victimize the witness. The words 'purpose', 'motive', 'object' and 'intention' are used interchangeably in the judgments in Attorney-General v Butterworth and it is quite unnecessary for present purposes to distinguish between them; we shall use the word 'intention' to cover motive as well. An intention to interfere with the administration of justice is not necessary to constitute contempt; the critical question is whether the act is likely to have that effect, but the intention with which the act is done is relevant and sometimes important (Attorney-General v Butterworth [1963] 1 QB 696 at 725 - 726 and see at 722 - 723; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371)." (The emphasis is that of McHugh JA).
37 McHugh JA said (at 569) that he did not think that there was any
difference in law between an intention to interfere in a particular proceeding and an intention to interfere in the course of justice as a continuing process. He also remarked (page 569) that what was said by the Court in Attorney-General (NSW) v John Fairfax & Sons Ltd (at 369), while open to the interpretation that an intention to interfere in a particular case was a contempt, meant, in his opinion, no more than that, given the intention, the case would not fail because the tendency of the publication or conduct does not result in actual interference with the course of justice. His Honour said (page 570) that to state that an intention to interfere with a particular suit is a contempt, even though
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there is no act or conduct which has the tendency to do so, was contrary to what had been decided in Lane, that having been a case of an intention to interfere in a particular suit. His Honour was also of the opinion (at 571 - 572) that the dicta of Moffitt P in Collins should not be followed, those dicta having been contrary to what was decided in Lane and not sitting easily with "the basic principle of the criminal law that a dishonest intention to commit an act by itself is neither a crime nor an attempted crime: Haughton v Smith [1975] AC 476".
38 Kirby P, too, declined (at 550) to accept that it was enough, in order
to make out a case of contempt, to establish that the defendant had a bare intention to interfere in the Court process, and nothing more. He also considered that the remarks in Collins did not represent a correct statement of the law, having regard, in particular, to what had been said in Lane's case. He said (at 551) that, "To divorce intention from conduct in this area of the law is unacceptable in principle because it would attach a criminal or quasi criminal liability to a mere intention whereas our criminal justice system is normally founded on the twin concepts of a criminal act coupled with a criminal intention".
39 Kirby P, like McHugh JA, considered that the plaintiff had failed, on
the evidence, to establish his alternative case that the defendant had had the intention to interfere in particular criminal trials. He consequently declined to offer an opinion on the question whether, had such an intention been made out, the pamphlet constituted a contempt. However, he added that he was "presently minded to agree with what McHugh JA has written on the subject".
40 In Attorney-General v Butterworth [1963] 1 QB 696 (one of the two cases referred to in Lane, at 258, in support of the proposition that the intention with which an act is done is relevant and sometimes important), Donovan LJ had said (at 726) that an intention to interfere with the proper administration of justice was not an essential ingredient of the offence of contempt of Court but that, in that case, it was necessary, in order to determine the likely effect of what the respondents had done, to inquire into their motives. Consequently, Donovan LJ seems there to have regarded the relevance of intention as being that it is a factor to be taken into account in determining what was the likely effect of the conduct in question.
41 In John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 (the second of the two cases), Dixon CJ and Fullagar, Kitto and Taylor JJ had said (at 371) that the actual intention or purpose lying behind a
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publication in cases of the kind there under consideration (one involving publication by a newspaper of allegations which were said to have had a tendency to prejudice proceedings) "is never a decisive consideration". Their Honours said that the ultimate question is as to the inherent tendency of the matter published (as to which see, also, the comments of Deane J in Hinch, at 46, and those of Mason J and Wilson J in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation ("BLF") (1982) 152 CLR 25 at 99 and 133 respectively), although they recognised that intention is always regarded by the Court as a relevant consideration, with its importance varying according to circumstances. As McHugh JA has pointed out in Collins, at 568, their Honours appear to have intended, by this last comment, no more than that the absence of intention, in a case in which the tendency of an article to influence pending litigation was "purely fortuitous", may provide a ground for refusing to exercise the summary jurisdiction. (Cf, in this respect, the comments of Wilson J, in Hinch, at 42 - 43). Intention will, of course, be relevant when sentencing a person who has been convicted of contempt (see Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 at 629 - 630 and Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 658). It has also been held to be relevant to the question whether there can be any defence based on a submission that the publication in question was made in the course of a discussion on a matter of public importance (see Hinch, at 43, per Wilson J, at 52 - 53, per Deane J, and 86, per Gaudron J).
42 It consequently seems to me that, when regard is had, in particular, to
what has been said by the High Court in McRae and in Lane, the weight of existing authority supports the proposition that a bare intention to interfere with justice is insufficient and that the publication in question must also have the requisite tendency. That being so, this Court is, in my opinion, obliged to take that approach. I should add that the New South Wales Law Reform Commission, in its recently published (July 2000) Discussion Paper on Contempt by Publication, has expressed the "tentative view" (par 5.76) that there is no reason why a separate offence of "intentional sub judice contempt" should operate independently of the ordinary principles of liability for sub judice contempt. The authors mention that there is, in New South Wales, already an offence of perverting the course of justice which focuses on the intention of the offender. The same is true in this State, there being provision, in s 143 of the Criminal Code (WA), for the offence of attempting to obstruct, prevent, pervert or defeat the course of justice.
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43 Moreover, when regard is had for more recent authority, it seems to
me that the requisite tendency is one which involves "a real risk, as opposed to a remote possibility that justice will be interfered with" (BLF at 56, per Gibbs CJ, accepted by Mason CJ in Hinch, at 27) or which is such as to exhibit "a real and definite tendency" to prejudice or embarrass pending proceedings (Hinch, at 34, per Wilson J, and at 70, per Toohey J) or which has a "clear tendency … as a matter of practical reality" to interfere adversely with the due administration of justice (Hinch, at 47, per Deane J). (See also the comments of Brennan J, with whom Deane J was in agreement, in R v Glennon (1992) 173 CLR 592 at 613). The question whether or not a contempt has been committed should, of course, be determined at the time of publication and not by reference to subsequent events (see, for example, Hinch, at 70, per Toohey J), although subsequent events may yield inferences as to facts prevailing at the time of publication.
That brings me back to the question whether there was any contempt
in this case.
45 Like Wheeler J, and generally for the reasons given by her, I would
not follow the views expressed in Attorney-General v Times Newspapers Ltd [1974] AC 273 to the effect that it is necessarily a contempt to publish material calculated to bring about public prejudgment of an issue before the Courts. I agree with Wheeler J's comments to the effect that the two competing public policy considerations which lie at the heart of the law of contempt (the need to ensure that the due administration of justice is not interfered with and the need to ensure that freedom of speech is not interfered with any more than is necessary) have already found a balance in the formulations which are contained within the Australian case law and that there is no need, in this country, for any extension of the law in this area by means of the adoption of the approach taken in Times Newspapers. I also agree with, and respectfully adopt, all that has been said by Mason P in Harkianakis, at 34 - 37, as regards his Honour's analysis of Times Newspapers, including his conclusion that there is a need for caution in applying that case. I am inclined, also, to agree with Wheeler J, for the reasons given by her, that on a close reading of Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, that case does not have the effect that it is, in this State, a contempt of Court to invite a public prejudgment of issues to be determined in Court proceedings.
46 There was, in this case, no prospect that the Coroner would, in the
course of his conduct of the coronial inquest, be influenced by anything which might appear in the press (cf, in this respect, Civil Aviation
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Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 548 - 550 and 561). Indeed, senior counsel for the applicant quite rightly accepted that this was so. Insofar as it was suggested that publication of the material in question, or some of it (the document having run to many pages), otherwise interfered with the due administration of justice by making it less likely that a determination by the Court in favour of Mrs Porteous would be publicly accepted (as to which cf Attorney-General v Tonks [1939] NZLR 533) or by somehow undermining the authority of the Court or the integrity of the judicial system, it seems to me that this was always a most unlikely result. I am unable to accept that publication of the material had any "real and definite" or "clear" tendency of that kind or that it gave rise to any "substantial risk of serious interference" (see Hinch at 34, per Wilson J, 47, per Deane J, and 27 - 28, per Mason CJ). The dispute between the two women was well known and had been highly publicised. It was notorious that each had previously made allegations against the other. Moreover, it was obvious that the allegations made in the document were untested. There was nothing to suggest that, after publication of the contents of the document, the Coroner's eventual findings in respect of those allegations (or so many of them as were ultimately repeated in evidence) would not be accepted, whatever those findings might be, once those making the allegations had been cross-examined and once other evidence, which might refute or cast doubt upon the allegations, had been given. I am consequently not prepared to find that there was any contempt on this basis.
47 The only other basis advanced in support of the alleged contempt
was, as Wheeler J has said, that the publication of the material, or some of it, would have a real tendency to affect the evidence of witnesses or potential witnesses. I agree with, and will not repeat, all that has been said by Wheeler J in that regard.
I would consequently dismiss the application.
WHEELER J:
The Application
49 This is an application seeking that Mr Camp be fined or committed
for an alleged contempt of court in distributing certain material to the media. The summary of events which follows is taken in part from the material contained within the application book, and in part from the evidence of Mr Camp, who was made available for cross-examination by
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the applicant. As I understand it, the only aspect of Mr Camp's evidence which is challenged by the applicant is that portion of it in which he asserts that he did not believe that the document in question was likely to be published as a result of his actions. For reasons which will appear, it is my view that his subjective belief is not relevant to this application, but I make findings on that issue, in case my view in that respect is mistaken.
The Publication
50 Mr Lang Hancock died on 27 March 1992. Over a considerable
period of time, the daughter of Mr Hancock, Mrs Rinehart, sought the holding of an inquest into her father's death. On 13 December 1999 the Coroner announced his decision to hold an inquest into the death of Mr Hancock. The inquest was formally opened, and a directions hearing held on 12 June 2000. Mrs Rinehart sought to have the Coroner make a finding that Mr Hancock's widow, Mrs Porteous, contributed to his death. Both Mrs Rinehart and Mrs Porteous were represented by counsel at the inquest. It appears that each of Mrs Porteous and Mrs Rinehart had a number of witnesses whom they considered to be relevant and whom they would seek to have the Coroner call as witnesses.
51 Mr Camp is a lawyer retained by Mrs Rinehart and, it appears, is a
possible witness at the inquest. Considerable hostility exists between Mrs Porteous and Mrs Rinehart. Many allegations have been made, in litigation initiated by one or the other of them, concerning the financial affairs of Mr Hancock and of companies created by Mr Hancock. Even before his death, the affairs of Mr Hancock, who was a man of considerable wealth, were the subject of significant media attention. The circumstances of Mr Hancock's death had attracted intense media interest, and it was clear from the outset that there was likely to be considerable publicity surrounding the inquest. In Mr Camp's words, he was retained by Mrs Rinehart to meet with some journalists because she considered that there was "a risk that the reporting of the inquest would be unfair from her point of view" if journalists were not fully informed of certain matters.
52 As part of the preparation for the inquest on behalf of Mrs Rinehart,
a document entitled "Chronology" was prepared ("the chronology"). It was considerably more than a simple chronology. It purports to be a detailed summary of a variety of events. The witnesses to those events are not always named, although one can infer, generally, that the person named in connection with the event is likely to be the witness in relation to it. In some instances, witnesses are not referred to by name, but
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designated by a letter of the alphabet. In the most colourful terms, the document details allegations which are broadly to the effect that Mrs Porteous was only interested in Mr Hancock for his money, that she treated him cruelly when he was ill, and that she wished for and attempted to hasten his death.
53 It appears that prior to the inquest, a number of journalists were
given access to files containing witness statements made by witnesses whom Mrs Rinehart wished to have the Coroner call. It appears that the statements were voluminous and that a journalist asked Mr Camp if a summary was available. At that time, he replied that there was no summary in existence but that one was being prepared and that he would provide it when it was available. It appears that he said this because he was aware that the chronology was being prepared, or that it was proposed to prepare a document of that kind.
54 At the directions hearing, counsel representing Mrs Rinehart gave the
Coroner a copy of the chronology, noting that he was not in a position at that time to "vouch for the complete integrity of all the witness statements". The chronology and some other documents which appeared to be annexed to it were received by the Coroner as an exhibit. It appears that they were received at that time on a somewhat limited basis. The Coroner commented that it should be received because "that way everybody knows what we have got and we haven't got". Amplifying that somewhat, he commented that it had been received " ... so that everybody knows what's being spoken about, and so it's – when it's referred to on transcript, a copy will be available if anybody wants – wishes to see it at some future date, and that I'm accepting it on the basis that this is an indication of what's said on behalf of Mrs Rinehart ... ". A little later in that proceeding, when counsel for Mrs Rinehart sought to outline briefly the matters which Mrs Rinehart saw as warranting investigation, that course was strongly objected to by counsel appearing for Mrs Porteous. In ruling on whether counsel could make an opening of that kind, the Coroner said:
"I don't propose to allow you, Mr Hayes, to make effectively a speech at this stage summarising the case as you see it, or as your client might see it, particularly as, as you say, the evidence isn't all yet available. There may be errors in this material, and there certainly would be matters I'm sure that Mr Styant-Browne [counsel for Mrs Porteous] would wish to respond to and have concerns about contained in the chronology and in any summary of the case as it is being put. That doesn't
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mean that I propose to exclude for all time the right to say what you understand the case to be, but at this stage we're having a directions hearing in circumstances where the representative of one of the parties is at a very considerable disadvantage.
I don't have any problem with your referring to paragraph 3 of your submissions ... . I think that the press and the public are entitled to understand at least something of what you say. But my concern is particularly that if we start to traverse on the detail of allegations and so on some of that might be disputed by evidence. Witnesses aren't yet called. People might get quite a misleading impression of what the true state of affairs is ... ".
55 It seems reasonably clear from the passage quoted that the Coroner
understood that any opening would at least significantly overlap with the material contained in the chronology and that he considered it was not appropriate for that material to be referred in open court at that stage. The later reference to the right of the press and the public to understand "at least something" of what was to be said on behalf of Mrs Rinehart carries with it the implication that the press and the public were not entitled, at that stage, to be provided with the detail of all of the allegations. However, no suppression order or other order restricting access to the chronology was made.
56 Shortly after the directions hearing, Mr Camp made copies of the
chronology available to two or possibly three journalists. One of them he knew by name; he does not now recall who the others may have been, and it is not clear whether he was acquainted with them at that time. A little later again, he received a telephone call from a Mr Reardon, another journalist, and faxed him a copy of the chronology. His evidence was that he "understood" that all of the journalists to whom he spoke, including Mr Reardon, had been in court during the directions hearing, although he concedes that with hindsight he had no reason to believe that Mr Reardon had been present in court. There is no evidence as to whether all or any of the journalists to whom Mr Camp gave copies of the chronology had in fact been present for some or all of the directions hearing.
57 On the following day, 13 June, articles appeared in a newspaper
published in Sydney and a newspaper published in Melbourne, each of them bearing Mr Reardon's name, and asserting that the Coroner had been "told" or had "heard" certain allegations contained in the chronology. On the same day, the Coroner made formal findings recording his concern
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with those articles. The Coroner noted that the articles were false, to the extent that they tended to suggest that the matters contained within them had been aired in open court. The Coroner then made a suppression order in relation to the chronology.
Mr Camp's conduct – factual findings
58 Two related aspects of Mr Camp's conduct were the subject of
submissions about the inferences to be drawn from his affidavit and his evidence. Although I think that they ultimately prove to be peripheral issues, it is convenient for me to set out briefly the findings of fact which I would make in respect of them. Those issues are the question of the intention with which Mr Camp provided the documents in question, and the particular question of what he knew or believed or intended about the likelihood of republication of them in news media. It does not appear to have been suggested that Mr Camp consciously wished to interfere with the course of justice by, for example, causing publicity which he hoped might influence the Coroner or witnesses.
59 It appears to me from Mr Camp's evidence that he did not make the
material available with the conscious intention that it should be republished. It seems likely that he did not advert to the question at all or that, alternatively, he assumed without really considering the question, that it would not be republished at that stage. It is true that it was provided to journalists well in advance of the time at which any of the persons referred to in the materials would be likely to be called to give evidence, so that it would be of no immediate assistance in following their evidence. It is also true that he had difficulty in articulating how the provision of the material to journalists would be of any assistance to them if they were not to republish it.
60 There are however a number of possibilities reasonably, open it
seems to me. The maintaining of a good relationship with those journalists for the future, by the satisfaction of their idle curiosity, is not to be overlooked as a consideration. Further, knowledge of the whole thrust of the case which Mr Camp's client would present to the inquest might consciously, or unconsciously, influence the way in which those journalists might write about other aspects of the proceedings before the Coroner so as to provide greater "fairness" from Mrs Rinehart's point of view. An aide memoir as to the likely evidence to be elicited from particular witnesses would be of assistance to busy journalists (particularly those not based in Western Australia) in deciding when it
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would be worthwhile attending what were likely to be protracted proceedings. It seems to me likely that considerations of these kind, rather than a desire for immediate publication, prompted Mr Camp to make the documents available.
61 However, as a matter of fact, there were features of the
circumstances in which those documents were made available which gave rise to a real and significant likelihood that the documents, or portions of them, would be republished in the news media. Had Mr Camp adverted to the question at all (as in my view he ought to have done), that likelihood would have been apparent to him.
62 Those considerations are as follows. The status of the document was
unclear; it had been marked as an exhibit and there was no suppression order in relation to it. It was provided without any warning that it should not be used. It was provided to journalists who may or may not have been in court to hear the Coroner's discussion with counsel about it, and in circumstances in which Mr Camp took no steps to ensure that they either had been in court or that they understood the gist of the exchange which had there taken place. Its inherently sensational nature meant that it was very likely that the media would wish to publish it. It was provided in some instances to journalists with whom Mr Camp had no prior association and about whose likely behaviour he could make no assumptions based on past dealings. The publication which in fact resulted seems to me therefore to have been a very likely consequence of the manner and circumstances in which the document was provided.
The contempt alleged
63 The applicant puts its allegation of contempt on two, or possibly
three, bases. First, it is said that it is a contempt of court to invite a "public prejudgment" of issues to be determined in court proceedings. As an example of this type of contempt, or perhaps as constituting a slightly different type of contempt, it is suggested that the courts must protect litigants from the need to get into "public and prejudicial" discussion of the merits of the facts of the case while that case is still pending. For these propositions the applicant relies upon Attorney-General v Times Newspapers Ltd [1974] AC 273, which she submits was relevantly adopted by the Full Court as the law of this State in Hamersley Iron Pty Ltd v Lovell & Anor (1998) 19 WAR 316. Further, she submits that the publication of statements (or, in this case, summaries of statements) of persons likely to be called as witnesses, about the matters in respect of
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which they will be likely to give evidence, is undoubtedly a contempt (subject to the de minimis rule). A number of authorities are relied upon for that proposition.
64 Before turning to either of those submissions, it is desirable to
consider the concept which lies at the heart of the law of contempt. In order to establish that a contempt has been committed, it must be proved beyond reasonable doubt that there has been conduct which poses a particular risk to the administration of justice. The risk may be described in a variety of slightly different ways but it is essentially the same risk which is being described. Contempt is conduct which:
• posses a "real risk, as opposed to a remote possibility, that justice will be interfered with" (Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 - "the BLF case" – at 56 per Gibbs CJ, adopted by Mason CJ in Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 – "Hinch" – at 27); • has "a real and definite tendency to prejudice or embarrass pending proceedings" (Hinch per Wilson J at 34, Toohey J at 70); • has a "clear tendency to prejudice the due administration of justice" (Hinch per Deane J at 46 – 47).
65 The ultimate question then is always whether the conduct,
objectively, poses a real risk of interference with the administration of justice. The submissions of the applicant are really to the effect that conduct of the type it describes – conduct which invites "prejudgment" or which publishes the statements of witnesses – must, as a matter of law, pose that risk.
"Prejudgment"
66 I would not follow the views expressed in Times Newspapers to the effect that it is necessarily a contempt to publish material calculated to bring about public prejudgment of an issue before the courts. In my view that is not the case in the ordinary run of civil cases which are not dealt with by a jury. I would decline to follow Times Newspapers for a number of reasons: the reasoning on that issue in that case is not, in my view, inherently compelling; the majority of the observations of Judges in this
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country appear to be against it (including observations in the High Court); it has been doubted in a later decision of the House of Lords; and, although it has been cited with apparent approval, I do not think that the Full Court in this State has applied it as the law in Western Australia.
67 Before developing any of those points, it is necessary to consider
precisely what was said in Times Newspapers about this issue. The case arose against the background of a number of actions, brought by parents of children born with gross deformities, against the manufacturers and sellers of a drug which contained thalidomide. There were a large number of actions. Some had been compromised by lump sum payments conditional on the allegations of negligence being withdrawn, while negotiations were continuing in respect of others. A national newspaper published the first of what was intended to be a series of articles drawing attention to the plight of the children. It appears that the matter principally suggested to constitute the contempt lay in a paragraph which dealt with what the editor saw as the company's moral responsibility to the children in question. The paragraph appreciated that there were legal difficulties with the claim brought against the company and that the plaintiffs, if they pursued the claim, might not succeed at all. It was also noted that the company might have a duty to shareholders which required it to take account of legal advice in making its offer, but it asserted that the law is not always the same as justice, and that the figure proposed as a lump sum payment in settlement of the claims was not great in comparison with the company's profits and net assets. It suggested that the company "think again". The reasoning of their Lordships was lengthy and detailed, and it is difficult to summarise it or to find any one quotation which fairly represents the way in which their Lordships considered the issue. However, I think that the quotations from the three speeches which I set out here adequately indicate the variety of matters which led to the conclusion:
Lord Reid said, at p 300:
"There has long been and there still is in this country a strong and generally held feeling that trial by newspaper is wrong and should be prevented. ... What I think is regarded as most objectionable is that a newspaper or television programme should seek to persuade the public, by discussing the issues and evidence in a case before the court, whether civil or criminal, that one side is right and the other wrong. ... As in so many other matters, strong feelings are based on one's general experience rather than on specific
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reasons, and it often requires an effort to marshal one's reasons. ... If people are led to think that it is easy to find the truth, disrespect for the processes of the law could follow, and, if mass media are allowed to judge, unpopular people and unpopular causes will fare very badly. Most cases of prejudging of issues fall within the existing authorities on contempt. I do not think that the freedom of the press would suffer, and I think that the law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to prejudge issues in pending cases."
Lord Morris of Borth-y-Gest said, at pp 303-304:
" ... To what extent may there be in the press or on television or, for example, in a public meeting a detailed discussion of and pronouncement upon the issues which are raised in pending proceedings? It is said that in some circumstances such discussions or such pronouncements could take place without affecting or influencing either the court or the parties or any witnesses. While this, in some circumstances, could be so it would be very difficult in any particular case to be sure that the effects of publicity were so limited and confined. ... But apart from this, is it right and is it appropriate, when parties to a dispute have submitted their dispute and the issues raised within it to the arbitrament of the courts that there should be elaborate public debate and explicit expressions of opinions as to what the decision of the court ought to be and as to where the merits and the rights lie? For one thing it would usually be difficult, pending the findings of the court as to what were the material facts, to have any firm or satisfactory basis upon which to begin to form opinion. But, even apart from this, is it not contrary to the fitness of things that there should be unrestricted expressions of opinion as to whether the merits lie with one party to litigation rather than with another? ... Though a judge would hope to be resistant to any pre-trial soundings of the trumpet it must surely be contrary to public policy to allow them full blast. ... also the courts, I think, owe it to the parties to protect them either from the prejudices of prejudgment or from the necessity of having themselves to participate in the flurries of pre-trial publicity. ... "
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Lord Cross of Chelsea said, at pp 322-323:
"we should maintain the rule that any 'prejudging' of issues, whether of fact or of law, in pending proceedings – whether civil or criminal – is in principle an interference with the administration of justice although in any particular case the offence may be so trifling that to bring it to the notice of the court would be unjustifiable. It is easy enough to see that any publication which prejudges an issue in pending proceedings ought to be forbidden if there is any real risk that it may influence the tribunal – whether judge, magistrates or jury, or any of those who may be called upon to give evidence when the case comes to be heard. But why, it may be said, should such a publication be prohibited when there is no such risk? The reason is that one cannot deal with one particular publication in isolation. A publication prejudging an issue in pending litigation which is itself innocuous enough may provoke replies which are far from innocuous but which, as they are replies, it would seem unfair to restrain. So gradually the public would become habituated to, look forward to, and resent the absence of, preliminary discussions in the 'media' of any case which aroused widespread interest. An absolute rule – though it may seem to be unreasonable if one looks only to the particular case – is necessary in order to prevent a gradual slide towards trial by newspaper or television."
71 It is interesting to note that there appears to have been some
difference of opinion between their Lordships as to whether they were expressing an existing rule, or extending the reach of the law of contempt. Lord Reid expressed himself in terms which suggested that he thought that it was necessary to make a general rule, while Lord Cross spoke of the need to "maintain" an existing rule.
72 There are, I think, three themes which emerge from the passages
which I have quoted. The first is the need to protect the parties, referred to by Lord Morris. As I understand his Lordship, the protection is from the need to participate in pre-trial publicity; presumably it is thought that the party whose reputation, for example, is vigorously attacked in the press, will find it necessary to reply, and that the resources required to make an effective reply will be resources which might otherwise have been directed to the litigation. One can see the force of this reasoning. In recent times, one of the factors leading to the increased emphasis on case
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management has been the recognition that it is undesirable that any party should be harassed or have its resources diminished by unnecessary and lengthy applications, to the detriment of the principal issues in the action.
73 However, leaving aside the case in which one party deliberately
engineers such publicity so as to harass and diminish the resources of an opponent, there are considerations which suggest that this factor should not lead to any general conclusion about the content of the law of contempt. Parties have many demands on their time and resources other than litigation, and the courts make no attempt to protect them from those; nor can a party ask the court to protect it from having to prosecute any action on the basis that that matter diverts its attention from litigation in which it is already participating. The cases in which there is such extensive publicity that the perceived need to deal with it places any serious burden on the resources of a party will be rare; and in many of those rare cases, as in Times Newspapers, the subject of the publicity will in any event be a body which can be presumed to have available to it appropriate machinery for dealing with public relations questions.
74 The next theme which emerges is to do with the difficulty of drawing
lines. It emerges in different ways in different speeches. Lord Morris notes that in some cases there is likely to be no effect upon witnesses, for example, from public discussion, while in others there may. His Honour also notes that a judge would hope to be resistant to such public discussion, but he may perhaps be understood to suggest that a stage may be reached where even a judge may be influenced to some extent. Lord Cross suggests that one publication in isolation may be innocuous but that it may lead to a degree of discussion which cumulatively is prejudicial. Lord Reid refers to the likelihood that the law would be clearer and easier to apply if there is a general rule about prejudgment. Again, one can appreciate the force of these observations. The difficulty of drawing lines in such cases may be very great.
75 However, in principle it is difficult to see the justification for holding
that there should be a blanket rule that all publications of a particular type will constitute contempt, when it is appreciated that only some of them are likely to have any real and definite tendency to prejudice the administration of justice. Sometimes a blanket rule will be necessary. There is perhaps something very close to a blanket rule in the assumption that publication of the prior convictions of an accused person is prejudicial to the administration of justice (although that is subject to the proximity of publication to the date of trial) but that, as I understand it, is based upon the long experience of the courts that the placing of such
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material before potential jurors will almost inevitably compromise a fair trial of the accused: see Attorney-General (New South Wales) v Willesee [1980] 2 NSWLR 143 at 150 per Moffitt P. It is a very different thing to hold that a publication which prejudges any proceeding will inevitably constitute a contempt, because in some such cases – and perhaps in a minority of them – there will actually be an identifiable risk of interference with the due administration of justice.
76 Finally, there is in all of the speeches a clear view that "trial by
media" is highly undesirable. Although Lord Reid observes that if people are led to think that it is easy to find the truth, disrespect for the processes of the law could follow, I do not think that this represents the principle underlying the views expressed. Much of the criticism of decisions made in the courts, which takes place after decision, has a tendency to suggest that the truth is easy to get at and that the court has failed to do so; however, within broad limits, such criticism, even if ill-informed and intemperate, is permissible.
77 It is easy enough to understand that the type of trial by newspaper
which their Lordships discuss is socially undesirable, and I accept that the concept of "public policy" in the law reflects the fact that the content of the law is, to a degree, shaped by a judicial conception of what may be seriously socially undesirable. However, so far as the law of contempt is concerned, I do not think that it is permissible to introduce a conception of public policy in this way and at this point. There are two competing public policy considerations which lie at the heart of the law of contempt. The first is the necessity of ensuring that the due administration of justice is not interfered with; the second is that of ensuring that freedom of speech is not interfered with to any greater extent than necessary. Those considerations have been balanced already in the formulation of the test for contempt as being conduct which has, objectively, a real and definite tendency to prejudice the administration of justice (and in Australia also by reference to a further balancing of the type adverted to by Jordan CJ in Ex parte Bread Manufacturers Ltd; re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249 – 250, discussed by the High Court in Hinch). If it is accepted that a particular type of conduct will often, or in many circumstances, not be able to be described as conduct with a real and definite tendency to prejudice the administration of justice, then it does not seem to me to be open in effect to alter the test for contempt in a particular type of case by deeming conduct which may well not fall within it, to fall within it.
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78 In Australia some of the questions canvassed in Times Newspapers arose in a different context in the BLF case. In that case it was sought to restrain the sitting, or at least the public sitting, of a Royal Commission, on the basis that it and the publicity arising from it could interfere with the fair hearing of a deregistration proceeding in the Federal Court involving the same Union. The Full Court of the Federal Court was prepared to grant injunctive relief. It was suggested in the reasons in that Court that the potential contempt arose from the likelihood of a "degree of public pre-trial" of the relevant issues, from the likelihood of "undesirable public prejudice", and from the potential creation of an atmosphere in which there was pressure brought to bear on witnesses and, albeit subconsciously, on judges.
79 On appeal, in a number of judgments in the High Court there were
comments made which are not consistent with the reasoning in the passages from Times Newspapers from which I have quoted. Gibbs CJ considered statements in the authorities to the effect that utterances which prejudiced "mankind" against a litigant amounted to contempt. His Honour observed that where there was a jury the effect of prejudice was apparent. However, where the trial was to be by judge alone, his Honour observed that it was "not easy to see why the effect ... on the public at large should be material". His Honour noted that the position may be different where the publication exposed the litigant to "public and prejudicial" discussion of the merits while the case was still pending but thought it unnecessary to consider that issue (at 57). Mason J understood the effect of Times Newspapers to be that there was an absolute prohibition against press prejudgment which was designed to bring pressure to bear upon the litigant (at 96). His Honour appeared to doubt whether the approach taken in Times Newspapers was the law in Australia (at 96 – 97). He expressed the view that prejudice in the public mind was significant where the trial was by jury because there was "solid ground for apprehension" that jurors would reflect the attitude of the public. His Honour raised the possibility that public prejudice may have special importance where it is suggested, as in Times Newspapers, that there is consequential pressure on a party to compromise or abandon his case (at 100). His Honour considered the risk of Judges succumbing to pressure from public prejudice as "fanciful" (at 102). Wilson J observed of prejudice created in "mankind" in general before the hearing of a case, that in most cases of contempt to which that definition applied, it had derived its force from the fact that the issues were to be determined by a lay jury. His Honour considered that a general "atmospheric" effect was therefore relevant only to the extent to which it might establish that there
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was a real and definite tendency to influence potential witnesses or the Judges to behave otherwise than they would if there were no publicity, and his Honour noted that authority favoured the view that superior court Judges at least were not likely to be affected by such publicity (at 135 – 136). Aickin J agreed with Wilson J in those observations, although since his Honour considered the Federal Court had no jurisdiction to make the orders made in any event, his views in that respect were strictly obiter.
80 Murphy J found it unnecessary to consider the point, finding that the
appeals were incompetent and the Commission invalid for other reasons. Stephen J adopted the views expressed by the Full Court of the Federal Court; although his Honour did not directly deal with Times Newspapers, the views which he adopted were certainly consistent with the views expressed in that case. Brennan J expressly cited and relied upon the views expressed in Times Newspapers to the effect that the law of contempt proscribed any public prejudging of the case or of the issues, whether or not such public prejudgment was likely to affect the Judge (at 167). In the High Court, then, the views of two Justices (Wilson and Aickin JJ) appear to be inconsistent with the views expressed in Times Newspapers, while Gibbs CJ and Mason J appeared unwilling to accept a blanket prohibition on prejudgment. Only Stephen and Brennan JJ appeared to accept views of the kind expressed in Times Newspapers.
81 Turning to other States, in Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 ("CAA") all members of the Court of Appeal of New South Wales expressed reservations, to varying degrees, about Times Newspapers: Shellar JA at 572 expressed the view that there was no rule of law in Australia that all cases of media prejudgment constituted contempt; Handley JA at 570 considered it unnecessary to consider whether any general prejudgment rule existed, but noted that Australian courts had not so far accepted it; while Kirby P at 554 – 558 considered a number of factors which pointed positively against an acceptance of the principles enunciated in Times Newspapers as the law of Australia. In the unreported decision of the Supreme Court of Victoria of Shackles & Anor v The Broken Hill Pty Co Ltd & Anor; unreported; SCt of VIC (Byrne J); Nos 5980, 6861 and 6862 of 1994; 16 November 1994 his Honour accepted, citing Times Newspapers, that the publication of views dealing with issues in a civil proceeding may amount to contempt, but noted a "line of authority" in Australia that the mere public discussion of issues before a court, even though it included opinion as to the rights of the parties, was not a contempt unless there was
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improper pressure brought to bear on parties or witnesses (at 8 – 9, citing,
inter alia, BLF).82 In the case of In Re Lonrho PLC [1990] 2 AC 154, the House of Lords considered that it was "doubtful" whether the passages from Times Newspapers from which I have quoted could still be relied upon as accurate expressions of the law (at 208). That doubt may have arisen primarily from the enactment of the Contempt of Court Act 1981 (UK), which effected an alteration in the law of contempt. However, observations were also made which pointed to some criticism of Times Newspapers in the December 1974 Report of the Committee on Contempt of Court (UK Cmnd 5794) and which suggested a possible incompatibility between that case and Article 10 of the European Convention for the Protection of Human Rights.
83 In Western Australia, the applicant relies upon Hamersley Iron as establishing as the law of this State that it is a contempt of court to invite a public prejudgment of issues to be determined in court proceedings. There are statements in that case capable of supporting the applicant's argument, but on close examination I do not think the case as a whole has that effect. The background to Hamersley Iron involved an industrial dispute between Hamersley Iron and a Union, with the defendant Lovell being an industrial advocate employed by the Union. Civil proceedings were commenced arising out of that industrial dispute. There was an application on the part of the Union to strike out or stay Hamersley's proceedings which was dismissed, and a subsequent application made by the Union to the Full Court for leave to adduce fresh evidence on the hearing of its appeal from that decision. The Full Court dismissed that application but, prior to the Full Court handing down its decision on the application, Lovell conducted a radio interview, during which he referred to the existence and contents of some of the documents obtained through discovery. Also the Union published two documents for circulation to all Hamersley's workers and to any other interested parties referring to the existence and contents of certain of those documents. The theme of the radio interview and of the documents prepared for circulation was that Hamersley was bringing its action as part of a pre-planned anti-union industrial agenda and not in order to vindicate its rights by the recovery of damages. After that interview, Hamersley's senior manager conducted a radio interview responding to matters raised by Lovell, and Hamersley bought an application alleging that Lovell and the Union had committed contempt, firstly by publishing the discovered documents in breach of an implied undertaking to the court and secondly by engaging in conduct (the
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interview and publication of the documents prepared) calculated to
interfere with the proper administration of justice.84 The judgments of the court appear to be concerned primarily with the
question of the implied undertaking in relation to discovered documents, and whether it had been breached, and of the effect (if any) upon it of the principle of freedom of speech to be found implied in the Australian Constitution.
85 In relation to the second form of contempt alleged, both Pidgeon and
Ipp JJ agreed with the view of Anderson J that the publications referred to (that is the interview and the other documents) had a real, clear and definite tendency to prejudice a fair trial. Anderson J reached the view that the purpose of the publications was to "ridicule and belittle and pressure the applicant and prospective witnesses specifically in regard to the litigation" (at 344). His Honour quoted from the emotional and inflammatory language used by Mr Lovell in the radio interview, in which he, inter alia, referred to the conduct of Hamersley as "cynical and anti Australian" and to the company as "an industrial 'Ship of Fools' ". Further, during the course of the interview Lovell made allegations to the effect that the company would have a very difficult time in getting evidence to rebut the allegations made by the Union, "given the penalties for perjury that are now being evoked [sic]". Other comments were made by Lovell to the effect that anyone giving evidence which contradicted the views expressed by Lovell would be committing perjury and might well be subject to appropriate penalty. His Honour accepted that the clear innuendo in the publications, aimed directly at prospective witnesses, was that anyone who gave evidence contrary to Lovell's assertions would be a perjurer. His Honour quoted, at 346 – 347, from the reasons for decisions of Brennan J in BLF, including the following quote from Times Newspapers:
"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon attaining in the courts the arbitrament of a tribunal which is free from bias ... and whose decision will be based upon those facts only that have been proved in evidence ...; and thirdly that once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law."
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86 In arriving at his conclusions, his Honour found a subjective intent to
interfere in the proper administration of justice. The conduct in question was calculated to bring pressure to bear on Hamersley to cease the litigation, and to expose it to damage to its reputation by reason of its participation in the litigation.
87 His Honour considered that the publicity in question had required
Hamersley to get into "a public and prejudicial discussion of the merits of the facts of his case while it is still pending", citing Gibbs CJ in BLF (at 348). Although Anderson J may be read as citing Gibbs CJ in support of the proposition that such public and prejudicial discussion is proscribed, it seems clear that the quotation is taken from pages 57 – 58 of BLF, at which Gibbs CJ did no more than cautiously express the view that conduct which had that effect "may" be contempt but that it was not necessary for him to consider that question. It is to be noted also that the "prejudicial" discussion in Hamersley Iron was of a particular kind. It was discussion which used the conduct of the company in the litigation in question as a basis for attacking the company's reputation; that is, it went further than merely expressing a view about the merits of the case, but tended to suggest that the fact of the litigation itself showed that the company was acting in bad faith. This not only goes further than simple discussion of the merits of a case, but it also goes further than the views expressed by the newspaper in Times Newspapers, which recommended an alternative course of action to the company but did not accuse it of bad faith. It appears likely, in those circumstances, that in quoting from Gibbs CJ in BLF, and in his references to "prejudicial" discussion, Anderson j was directing attention to the uncontentious proposition, that conduct which subjects a litigant to improper pressure to discontinue or to compromise proceedings, thereby hindering access to justice, is contempt (see Harkianakis v Skalkos (1997) 42 NSWLR 22 at 28 – 30 per Mason P).
88 I do not think one can derive from Anderson J's finding that that type
of comment was prohibited, a broader principle that all pre-trial "prejudgment" of the merits of the case is prohibited. I would not understand his Honour's reasons as intending to have that effect. There was no discussion of that issue of the kind which one would expect if the court were considering adopting a disputed principle into the law of the State, and it was not necessary to do so in order to find that a contempt was committed in that case.
89 In the light of all of the above, it is my view that there is in this State
no general principle to the effect that it is a contempt of court to invite
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public prejudgment of issues to be determined in court proceedings or to
engage in public discussion of the merits of a case which is pending.
Effect on witnesses
90 The oldest of the cases cited by the applicant is Bell v Stewart (1920) 28 CLR 419. The relevant passage is in the judgment of Isaacs and Rich JJ, in which their Honours joined, although for somewhat different reasons, in the decision of the majority of the High Court in setting aside convictions for contempt. Considering a newspaper article which commented on the question of whether the Commonwealth Court of Conciliation and Arbitration should take judicial notice of a certain practice in an industry, their Honours (at 434) expressed the view that there was no doubt that the article was technically a contempt, in having a "tendency" to weigh both with the judge and with witnesses who might be called to state their opinion on the subject. Their Honours observed that witnesses for the employer might find themselves more emphatic than they otherwise would have been, witnesses for the employees might hesitate to state their views as confidently as they otherwise would, or intending witnesses might be deterred altogether as a result of the article. Their Honours added "Whether that would happen we cannot tell; it might reasonably occur, and that determines the 'tendency' " (at 434). There may be some question as to the extent to which their Honour's views should now be relied upon. At 431 - 432 their Honours considered the meaning of the word "tendency" in the law of contempt, and accepted the view that a relevant tendency may be very slight, but that unless the possibility is so remote as to justify the view that there is no tendency at all, there will be a relevant tendency to interfere with the administration of justice. It is not clear that these views are entirely consistent with the requirements, expressed in later decisions of the High Court, that there be a "real" or "clear" or "definite" tendency in order to establish a contempt.
91 However, it is clear that for there to be a contempt, there must be a
real tendency to affect the evidence of witnesses in the circumstances of the particular case. In BLF, Gibbs CJ, Mason J, and Wilson J (at 58- 59, 103, 136) note that there must be some reason to expect an effect on witnesses in the particular case before the view can be formed that a publication is contempt. These views are consistent with the requirement that there must be a real tendency objectively to affect the administration of justice, discussed earlier. The matter arose more directly in CAA in the Court of Appeal of New South Wales.
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92 In CAA, the question was whether there had been contempt of a Coroner's inquest by the broadcast of interviews with potential witnesses. The court considered whether it was satisfied beyond reasonable doubt that the publication had a "clear tendency as a matter of practical reality" to interfere with the due course of justice by its effect on potential witnesses. By a majority, the court found that it did not. This necessarily involved the proposition that pre-trial publicity which suggests or discloses the evidence which witnesses are likely to give does not necessarily constitute a contempt. The court did not apply a statement in the earlier New South Wales decision of Attorney-General v Mirror Newspapers [1980] 1 NSWLR 374 to the effect that the publication of statements by persons likely to be called as witnesses is inevitably contempt.
93 Kirby P attributed significance to the fact that there was be a distance
of four months between the broadcast and the assigned date of the inquest. His Honour considered that not to be decisive, but it was a relevant factor. His Honour also noted that the witnesses spoken to in that case gave their accounts in a sober and considered form and based upon previously prepared notes. Those notes would be available to the Coroner. In that case, his Honour considered it unlikely that the witnesses would (even if they wished) be able to tailor or significantly alter their evidence. In any event, his Honour considered that there was nothing to suggest that they would wish to do so. His Honour noted that a substantial amount of the evidence to be given before the inquest would be in the form of expert evidence and that the experts would be unlikely to be influenced by the broadcast. His Honour concluded by observing that witnesses at an inquest would be much closer to the matters in issue than the general public, and would have their own knowledge of what happened and of the role which they played; for that reason, his Honour thought they would be unlikely to be influenced by general publicity (at 553). Shellar JA accepted that in some circumstances the publication of statements by persons likely to be called as witnesses would be contempt. However, it appears to me from his Honour's analysis of the BLF case that his Honour formed the view that there would need to be particular circumstances surrounding the broadcast of such material in order to constitute a contempt, and that as a general rule it was unlikely to do so. The principal reason for his Honour's finding that there was no contempt appears to be found in his quotation from Shaw LJ in Schering Chemicals Ltd v Falkman Ltd [1982] 1 QB 1 at 29:
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" ... witnesses in an action are credible and reliable or they are not. Our system of trial in which evidence is elicited by examination and cross-examination provides the means of demonstrating the character and quality of a witness." (at 575)
94 In a careful judgment canvassing the various cases in which it had
either been found or suggested that the effect upon witnesses would be a basis for a finding of contempt, Handley JA found that in the particular circumstances of CAA the possible effects upon some potential witnesses might be such as to deter them from coming forward or to influence the content of their evidence. His Honour reached this view on the basis that "If they listened to the programme they could be pardoned for thinking that there were open and shut cases against both Monarch and the authority in relation to the crash."
95 There are a number of reasons for considering that in the
circumstances of the present case, the effect of any publication of material contained in the chronology provided by Mr Camp upon potential witnesses would be speculative. In the first place, there would be a very long time between publication (assuming it occurred fairly shortly after provision of the material) and the resumption of the inquest. Some of the potential witnesses referred to in the chronology were not referred to by name (and so could not be seen publicly to have told a story to which they would feel bound to adhere) and some were not even to be located within Australia. Some of the witnesses to be called on either side were expert witnesses. Even if one confines attention to the possible effect on non-expert witnesses who were within the country any publication would take place in the context of an inquest relating to the affairs of the late Mr Hancock. Mr Hancock's family life and financial dealings had been the subject of proceedings in the Supreme Court of this State already, and there had been for some years allegations of a somewhat sensational nature made from time to time concerning his relationship with his daughter Mrs Rinehart and with his wife Mrs Porteous. The material in the chronology, although sensational, would be seen against that background. The chronology did not purport to be a verbatim account of what the witnesses had said or would say, but merely a summary extracted by a third person. Even if significant portions of the chronology were published, it would be reasonable to expect that at some time prior to the recommencement of the inquest there would be published further material emanating from other sources likely to be favourable to the case which Mrs Porteous would wish to present to the inquest. Indeed, it is to be noted that the two articles the publication of which resulted from the
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distribution of the chronology, quote a lawyer representing Mrs Porteous as saying that the allegations it contained were "utterly provocative", and it is clear from the tenor of each report that Mrs Porteous had had limited access to the material and had not yet been able to reply. That is, as a matter of practical reality, the type of context in which one would expect any of the allegations in the chronology to be published.
Relevance of intention
96 I have already expressed the view that Mr Camp had no subjective
intention to interfere with the administration of justice. However, in the course of discussing the application of Times Newspapers in Australia, I have referred to the possibility that in some cases the presence of an intention to interfere with the administration of justice may be seen as a distinguishing feature. For the sake of completeness, I note briefly my view as to why that may be so.
97 Intention appears, in the Australian authorities, potentially to have
relevance at two points. The majority of the references to intention as being "relevant" can be traced back to John Fairfax & Sons v McRae & Ors (1955) 93 CLR 351 at 371. If one reads the whole of the passages at 370 – 371 of that case, it seems to me to be clear that the court is not discussing the question of what technically constitutes a contempt, but in what circumstances it is appropriate for the court to exercise its summary jurisdiction to punish for contempt. The discussion in that case seems to assume that intention will not be relevant to the question of whether a contempt has been committed, but will be a relevant factor for the court in determining whether to exercise its summary jurisdiction to punish for contempt.
98 However, there are also some statements in the cases which may be
understood as indicating, and may in some cases intend to indicate, that where an intent to interfere with the administration of justice has been proved, then that will be sufficient to sustain a charge of contempt. In Harkianakis v Skalkos, Mason P (at 28) collected a number of those cases and explained them in two possible ways. First, his Honour suggested that the courts in those cases may be applying the principle that a person who does an act with such an intention is admitting a belief that he or she has a reasonable chance of success with that admission being used as evidence of the fact; or secondly, it may be that such case involves an inchoate offence in the nature of attempt where the intent plus
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preparatory acts will be sufficient to sustain the charge. It is obviously
unnecessary to determine these questions in this case.
Conclusion
99 For the reasons which I have given, it is my view that the provision
of the material in question to those persons to whom Mr Camp provided it, did not have the real and definite tendency, as a matter of practical reality, to interfere with the administration of justice, which is necessary to constitute a contempt. I would therefore dismiss the application.
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