Registrar of the Supreme Court of South Australia v the Advertiser Newspaper Limited No. SCGRG 95/2418 Judgment No. 5616 Number of Pages 11 Procedure Contempt

[1996] SASC 5616

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN J

CWDS
Procedure - contempt - what constitutes - powers of court to punish for contempt - contempt of Court - penalty for acknowledged contempt - publication of an article whilst jury in retirement - particular facts.

HRNG ADELAIDE, 22 and 29 February 1996 #DATE 17:5:1996 #ADD 4:7:1996

Counsel for applicant:     Mr P Rofe QC

Solicitors for applicant:    DPP (SA)

Counsel for respondent:     Mr A Harris

Solicitors for respondent: Minter Ellison Baker O'Loughlin

ORDER
Fine imposed.

JUDGE1 BOLLEN J These proceedings are proceedings by way of summons for contempt of court. The summons is a summons issued by the Registrar of this Court on application made pursuant to Rule 93 by the Director of Public Prosecutions.

2. The summons was issued against Peter Blunden and Advertiser Newspapers Limited. Blunden was the Editor of The Advertiser newspaper. At the hearing the Registrar said that action against Blunden was "no longer pursued". So Blunden dropped out.

THE SUMMONS
3. The summons as issued and served called upon the defendant to answer a charge of contempt in that they (now "it") published an article on the 11th of March 1995 containing material that:-
    (a) Harmed the accused person in the trial of R v Henry
    Vincent Keogh.
    (b) Was calculated to prejudice or pervert the cause of
    justice.

4. At the hearing, with the consent of Mr Harris, for the defendants, the particulars of the charge were amended. Particular (a) became, and now is, the only particular. Particular (b) was excised.

5. Particular (a) was amended and now is ... (contained material that) "had a tendency to prejudice the accused in the trial of R v Henry Vincent Keogh".

THE RESPONSE TO THE SUMMONS
6. When the amendment had been allowed at the hearing Mr Harris said "I can indicate ...that as now particularised the Advertiser enters a plea, acknowledges the contempt".

7. That is to say a plea of guilty was, in effect, entered to this serious charge. And a serious charge it is. The amendment reduced the degree of criminality attached to the contempt. Speaking in everyday terms it made the suggested and acknowledged contempt less serious than it was pursuant to the original particulars. It is bad enough.

THE ARTICLE WHICH PRODUCED THE CONTEMPT
8. The application for the issue of the summons had been supported by an affidavit sworn by Rebecca Gray on behalf of the Director. The relevant page of the issue of the Advertiser for the 11th of March 1995 which contained the contempt was exhibited to that affidavit. It is essential that the reader of these reasons read the article. I append it.

SOME SUBMISSIONS OF THE DIRECTOR
9. In the course of his submissions the Director said:
    "The trial of Henry Vincent Keogh commenced on 21 February
    1995. The jury retired after 14 days on 10 March 1995,
    which was a Friday, at 12.18 p.m. They were then
    sequestered overnight, that is the Friday night.

On 11 March 1995, an article appeared in the 'Insight'
    section of the Saturday Advertiser, that is exhibited to Ms
    Gray's affidavit. To complete the chronology, the jury
    finally came back at nearly 1 o'clock on the afternoon of
    Saturday, 11 March, unable to reach a verdict. The matter
    was remanded again for trial and subsequently the trial took
    place and Mr Keogh was convicted.

The contempt alleged in the article of 11 March 1995 is,
    first of all, that it was not a straight factual reporting
    of the trial. It was a matter that commented, in a number
    of aspects, and if I could very briefly take your Honour to
    that. Your Honour has the article I think in the exhibit.
    The first matter of comment, not factual report, obviously
    is the headline, 'A tale of treachery'. That theme, in the
    plaintiff's submission, continues through the article.

Perhaps if I can take you to the first page of the photocopy
    extract to the bottom of the third column, there is a
    sentence begins: 'Over the next nine days, an extraordinary
    tale of treachery and betrayal emerged'.

It is repeated on the third page of the second paragraph
    beginning, 'Throughout this period, a betrayal' etc., so
    that's the first complaint.

The second relates to the reference in the article to
    'Brides in the Bath'. If I could take your Honour back to
    the first page of the article, column 1. (T)he last line
    begins: 'It was the Crown's case, Rofe told the jury that
    Anna Jane went home after being with Susan ... prompted
    Keogh to kill Ms Cheney.'

Whilst acknowledging that 'Brides in the Bath' was mentioned
    at the committal proceedings, it was specifically agreed by
    counsel in front of his Honour, that there would be no
    reference in the trial to the 'Brides in the Bath'. Clearly
    the pathology evidence was led as such, that the method of
    drowning put forward by the Crown was explained by the
    pathologist, but the jury were deliberately not told that
    there had been a case in 1915 with Mr Smith or there was
    such a thing as 'Brides in the Bath'."

10. I interrupted and said: "This reads a bit as if it is a summary of what you said."

11. The Director went on:
    "It is a matter of comment and I will come to that in the
    end. The last aspects of the article that are complained
    of, are opinions on credibility. On the second page of the
    exhibit, and I just take your Honour down to about the fifth
    paragraph, 'The unknown woman appeared a remarkably credible
    witness, handling delicate questions with grace' and so on.
    So again the article expresses an opinion on the credibility
    of a witness called. Admittedly, the witness was not really
    seriously in contention from the defence aspect, but,
    nevertheless, the writer of the article has chosen to
    express an opinion. All these things occurred in the course
    of the trial, albeit the jury having retired.

The final matter that I point to is that the entire article
    is one that will elicit sympathy for the victim, the
    deceased, and conversely creates prejudice for the accused.
    The tendency to prejudice, in the plaintiff's submission,
    was such that it would inevitably have caused a mistrial had
    the jury had access to it.

That is evident, and I'm not sure whether your Honour has
    this material before you, by the discussion on the Saturday
    morning between counsel and (the trial Judge). It is
    recorded as being pp.118 to 121 of the summing up of the
    first trial.

If I can very briefly take your Honour through it. The
    court resumed at 9.40 a.m. on the Saturday morning.
    Mr David, who was counsel for the accused, indicated to his
    Honour Duggan J, 'There is one matter I must raise. I don't
    know if your Honour has read the Advertiser', and he refers
    to the article. 'It is my submission, without going into
    detail, if any jury has read it, it is my submission that
    the jury should be discharged now'. And then we went
    through understandings that would be unlikely. His Honour
    (that is, Duggan J) said:
    'Mr David, I have already had inquiries made. I am aware of
    the article to which you refer. I contacted the Sheriff
    this morning at quarter past 7 to confirm that there would
    be no newspapers delivered to the jury' and so on.

That was confirmed with Mr Iveson, the Sheriff's Officer,
    that they did not, in fact, have access to Advertisers on
    that morning. It was then discussed about whether inquiries
    should be made of the jury and obviously Mr David sensibly
    thought not, to stop speculation. I made a comment about
    the insensitivity, unprofessional conduct by certain
    sections of the media. Then his Honour (Duggan J) at 121
    said:
    'As a general principle, I might say that I cannot recall an
    occasion on which an article, that to any extent might
    discuss the evidence, has been published during the trial
    itself, and I regard the retirement of the jury, of course,
    as being during the trial, and I mention that in the event
    that it's anticipated by, for example, the Sunday Mail, I
    have no knowledge that they might publish an article, but I
    just caution any newspaper or television program about any
    article or segment on television which discusses the
    evidence while this case is still on, and at the moment it
    is still on, it is still a trial, the trial is incomplete,
    and if it's necessary, I will have something further to say
    about that before the end of today.'

That is the gravamen, in our submission, of the contempt.
    The content, it is submitted, is not particularly serious,
    for example, if there had been a verdict and it had been
    published afterwards, Mr Keogh might have been somewhat
    upset, particularly if he had got an acquittal, I suppose,
    and perhaps the seriousness or the lack thereof of the
    actual content of the article was demonstrated by the fact
    that although an adjournment had to be given for the
    recommencement of the trial, it was only a matter of some
    months. And a stay on the basis of prejudicial publicity
    was refused.

What the essence of the contempt was relates to the timing.
    The timing was totally inappropriate. Admittedly, in one
    sense, I suppose, it could have been worse. I mean, if, for
    example, this had appeared on the Thursday or the Friday,
    and the jury would immediately have had access to it, and,
    in fact, caused a mistrial, the contempt would have been
    that much more serious. But nevertheless, what the
    plaintiff says and what the plaintiff asks your Honour to
    do, is send a very clear message to the media, that they
    must be extremely careful, particularly in media intensive
    trials of this duration, to accuracy and timing.

We don't ask for any extraordinary penalty in this case, but
    we do ask your Honour to echo those sentiments as a first-
    up, if you like, warning. I don't know of another case that
    has come before this court. There have been cases in the
    eastern states, but I don't think a comparison is
    necessarily appropriate, but if this can be, if you like,
    the landmark or the first-off case, we hope that, not
    necessarily, by way of the actual penalty imposed, but
    rather by way of your Honour's remarks, the message can be
    brought home to the media, that the appropriate words of
    warning fall from your Honour in this respect."

COMMENT ON SUBMISSIONS OF THE DIRECTOR
12. That is how the Director put the case. The moderate nature of his remarks and requests will have struck the reader. Despite that moderation I say that I think the contempt is very serious.

SUBMISSION OF MR HARRIS, COUNSEL FOR THE DEFENDANT
13. Let me turn to the submissions of Mr Harris. Mr Harris submitted a very thoroughly prepared and expressed document called "Submissions". He spoke to it and generally. He spoke of the good record of the remaining defendant.

CREDIT FOR GOOD RECORD, EXPRESSION OF REGRET, PLEA AND APOLOGY
14. Of course the remaining defendant must receive the usual credit for the plea, for its expressions of regret and for its apology. Of course it must receive credit for its splendid prior record. There has been no other instance of contempt in 130 years of publication of a newspaper. Of course, there should be no instances at all of contempt. But the good record deserves, and gets, credit.

FACTS STATED IN SUBMISSIONS FOR DEFENDANT AGREED BY DIRECTOR
15. In his document Mr Harris asserted several facts. He did that after consultation with the Director. I was told that the Director accepted the accuracy of those facts. There was, therefore, no need for evidence oral or by way of affidavit.

ATTITUDE OF DEFENDANT
16. Under the heading "Attitude" Mr Harris wrote:
    "2. Attitude

2.1 The Advertiser takes its obligations concerning
    reporting court cases very seriously. It always aims to
    ensure that it does not improperly prejudice court cases or
    breach court orders.

2.2 Since publication of the article in issue, the
    journalists concerned have been reminded in no uncertain
    terms of the importance of ensuring the Advertiser does not
    publish material which amounts to contempt or an improper
    interference with pending litigation.

2.3 The Advertiser sincerely regrets and apologises for
    publications of the article.

2.4 There was no intent to cause any harm or improper
    interference with the trial of R v Henry Vincent Keogh."

COMMENTS ON ATTITUDE
17. I comment on "Attitude". The Director accepts that there was no intent to cause harm or improper interference with the trial of Keogh. I should, therefore, accept that, too. But there was extreme negligence. There was a lack of care for fair reporting. The article is an obvious contempt. Those employed by the defendant who wrote and "passed" it should, in my opinion, have realised without delay or hesitation that it was a serious contempt, that it could have a serious adverse effect to the fair trial of Keogh. It was lucky that quick action by (as I am told) the trial Judge and the Sheriff's Officers prevented the jurors from seeing the article. A reading of it by jurors could have had a devastating effect on the trial. I mention, too, that had Keogh been acquitted the article would have inhibited his leaving court with the full advantage to his reputation which an acquitted person should have.

CIRCUMSTANCES OF PUBLICATION
18. I regret the lengthening of these reasons. But I think I should set out the circumstances of publication as put forward by Mr Harris. In his submissions, Mr Harris revealed those circumstances. As I have said, the Director accepts the accuracy of the facts stated in the document. Therefore, I do not seek to go behind that acceptance. It is a sorry story in any event.

19. Mr Harris wrote:
    "Circumstances of Publication

3.1 Sylvia Kriven is an employee of the Advertiser. She has
    been a journalist for approximately 14 years and covering
    courts for two years.

3.2 She is particularly aware from her court reporting
    experience of the importance of avoiding prejudice to an
    ongoing trial. She has always tried to be very cautious in
    her coverage. She takes her responsibilities as a
    journalist extremely seriously. She enjoys a good rapport
    and reputation with prosecution and defence counsel alike.

3.3 Ms Kriven has received a Certificate of Distinction from
    the SA Justice Administration Foundation for excellence in
    reporting justice issues.

3.4 During the week preceding publication, Ms Kriven spoke
    with Mr Colin James with a view to whether or not a feature
    should be prepared for the Insight section of the Saturday
    edition of the Advertiser.

3.5 Mr Colin James has been a reporter for 14 years. He is
    aware that reporting of trials is a serious matter. He has
    always done his utmost to avoid prejudicing any trials. He
    has never previously been involved in any legal proceedings
    as a result of his journalistic work. He has won a Walkley
    award, being Australia's most prestigious award for
    journalistic excellence. In 1995 he was a finalist in 3
    categories for SA Justice Administration Foundation Awards.

3.6 Both Mr James and Ms Kriven were aware of the
    Advertiser's system for checking legal issues relating to
    stories. Both have frequently consulted its lawyers for
    advice.

3.7 Mr James was, as at 11 March 1995, the editor of the
    Insight section of the Advertiser. As editor, Mr James
    decided what stories went into the Insight section, subject
    to the overall direction of the then editor Mr Peter
    Blunden.

3.8 Mr Blunden is an experienced journalist and was, as at
    11 March 1995, editor of the Advertiser. He has recently
    taken up an editorial position interstate with another
    company.

3.9 Ms Kriven is based at the Sir Samuel Way Building. When
    she prepares stories, she will transmit them electronically
    into the Advertiser's system, from where they will come up
    on a screen and can be viewed and altered.

3.10 On Friday, 10 March 1995 Mr James spoke with Mr Blunden
    and asked him if he wanted to proceed with the story summing
    up the Keogh trial. Mr Blunden understood the story would
    be a fair and accurate report of the course of the trial.
    On this basis, Mr Blunden took the view it would not matter
    whether the jury had given a verdict or not. Mr Blunden
    instructed Mr James to exercise caution with the story and
    to get it 'legalled'. This is a commonly used term meaning
    to have a story checked by the Advertiser's lawyers prior to
    publication. Mr Blunden also asked Mr James to get the
    headline and standfirst 'legalled'. (The 'standfirst'
    comprises the two lines at the top of the story above the
    photograph.) Mr James undertook to do this and assumed
    responsibility for ensuring this was done.

3.11 On the morning on 10 March Ms Kriven took legal advice
    from one of the Advertiser's lawyers. At this stage, she
    had not commenced writing the story. Ms Kriven was advised
    that provided the story was a fair and accurate report of
    what had taken place, the story could be published.

3.12 Ms Kriven experienced an extremely busy day on 10
    March. She was under a great deal of pressure. Ms Michelle
    Weidenhofer, another court reporter, was on leave. A
    colleague Chris Hackett had gone home sick. Ms Kriven was
    covering for two people. Another cadet was working, Ms Anna
    Cock. However, she was inexperienced and required some of
    Ms Kriven's time. Ms Kriven spent some time convincing Mr
    Hackett to go home because of his illness. These matters
    meant that Ms Kriven was losing time which she would
    otherwise have been using to prepare the feature.

3.13 Ms Kriven tried to write the story such that even if
    the jury had not given a verdict at the time of publication,
    it would not interfere with the trial.

3.14 Ms Kriven sent the story in 'takes' during the course
    of the day. She finished writing the story about 9.00pm.

3.15 Mr James had not himself been in court or following the
    case. He relied upon Ms Kriven to prepare a fair and
    accurate report.

3.16 Mr James did not take legal advice on the story. He
    was aware that Ms Kriven was an experienced journalist.
    From the contents of the story he understood it amounted to
    no more than a fair and accurate report of what had taken
    place during the course of the trial.

3.17 Mr James also experienced a great deal of pressure that
    day. It was an extremely busy news day. In addition to his
    normal responsibilities editing Insight, Mr James attended a
    press conference and wrote a story on the resignation of
    Mr Ian McLachlan, MP, who resigned from the opposition front
    bench that day. Mr James had been following closely Mr
    McLachlan's involvement in the Hindmarsh Island matter.
    That story appeared on page 26 of Insight on 11 March 1995.
    It is unusual for the two lead stories in Insight to be
    prepared on the day before publication and so close to
    deadline.

3.18 Mr Blunden did not see the story prior to publication.
    When producing Insight, on Friday, Mr James is physically
    located on a different floor to Mr Blunden. The editor does
    not normally see every story that goes into the paper. The
    requirements of a newspaper are such that an editor must
    delegate duties to other members of staff. Mr James, as an
    experienced and competent journalist, was one of those
    persons to whom functions were delegated.

3.19 Late in the afternoon of Friday 10 March Mr James spoke
    to Mr Blunden. Mr James said words to the effect that it
    looked like the jury was still going to be out in Keogh, did
    he still want to run the feature. Mr Blunden said yes. Mr
    Blunden gave that answer on the basis that he believed the
    story was to be legalled in accordance with his previous
    instruction. Mr Blunden also believed that any story would

    amount to no more than a fair and accurate report of what
    had taken place, such that it would not matter whether the
    jury had given a verdict or not.

3.20 Mr James did not get the story legalled because it
    looked 'straight' to him. He did not think there were any
    obvious problems requiring legal advice. If he had thought
    there was any legal issue of substance, Mr James would not
    have hesitated to obtain legal advice. Due to the pressure
    of his working day, the imminence of deadlines and his
    honest and real belief that there were no legal concerns
    with the story, he did not follow Mr Blunden's instruction
    to obtain legal advice. Mr James did not think it necessary
    to do so. This was an honest error of judgment.

3.21 Ms Kriven also was of the belief that the story was no
    more than a fair and accurate report of what had taken place
    during the court hearing.

3.22 Neither Mr James nor Ms Kriven nor the Advertiser
    sought to imply guilt or innocence in relation to the Keogh
    trial.

3.23 Had legal advice been that the story should not be run,
    it would not have been. Such legal advice has invariably
    been followed. Standby stories exist. Had the legal advice
    been that the story should be altered, it would have been.

3.24 In relation to the headline 'A Tale of Treachery',
    'treachery' to Mr James means betrayal. On his
    understanding of the evidence, Keogh had engaged in
    betrayal. He had carried on a sexual relationship with
    another woman unknown to Ms Cheney. He had lied to
    insurance companies about insurance policies. The
    signatures on the policies had been forged and could never
    have been the foundation of a valid claim. Keogh maintained
    his agencies through the writing of these policies. Mr
    James consulted the Macquarie Dictionary and paid special
    attention to the word 'treachery'. The Macquarie definition
    is 'violation of faith; betrayal of trust, treason, an act
    of perfidy or faithfulness; readiness to betray'. To his
    mind the evidence fairly established treachery. Mr James
    was not intending or seeking to prejudice a fair trial.

3.25 Mr James decided on the wording of the headline and
    stand first at about 9.45pm. The usual last deadline is
    9.20pm. This actually held up publication of the paper. Mr
    James has never worked so late on an Insight feature.

3.26 In relation to the reference to the 'Brides in the
    Bath', Ms Kriven was aware that reference had been reported
    during the committal hearing (which she herself covered and
    reported). Neither Ms Kriven nor Mr James knew that the
    material had not been mentioned to the jury. Neither
    Mr James nor Ms Kriven knew that any order or direction had
    been made that the material should not be put before the
    jury. Ms Kriven did not attach any significance to the
    material. She knew evidence of the methodology had been
    presented to the jury."

20. I interpose to say that it was the responsibility of Ms Kriven, who was "covering" the trial, to ensure that she knew what had been put to the jury.
    "3.27 In relation to the issue of the credibility of the
    'unnamed woman' referred to in the right hand column, so far
    as Ms Kriven or Mr James were aware there was no dispute in
    relation to her evidence.

3.28 Because of the lateness of the story in arriving, no
    one apart from Mr James saw the story at the Advertiser
    office prior to publication.

3.29 Mr Blunden has expressed his strong displeasure and
    concern that Mr James did not follow his instructions.

3.30 Ms Kriven has also been extremely concerned at her
    involvement in this matter."

21. That is the material which reveals the circumstances of publication.

COURT'S COMMENTS ON THE CIRCUMSTANCES OF PUBLICATION
22. There was blatant disobedience of the instruction of the editor. No doubt, on the basis accepted by the Director, that was caused by an honest error of judgment. But the error was massive. And reckless. I can find no mitigating factor in the submissions so valiantly made by Mr Harris. As I have said the plea of "guilty", the expression of regret, the good record and the absence of positive intent to harm will reduce the penalty but there is no factor, no circumstance, nothing which operates to mitigate the seriousness of the publication of the article. There was a complete lack of elementary caution in any consideration given to the propriety of publishing the article as it was written. Neither the pressure of work nor the lateness of the hour is any excuse for this lack of caution. Anyone who holds a responsible position, and I repeat "responsible position" in the workforce must expect, at times, to work under extreme pressure and well past ordinary working time.

GRAVITY OF THE CONTEMPT
23. As I have said, the article was obviously a contempt. The possibility of its causing harm or prejudice to the accused and preventing the completion of a fair trial is obvious. No doubt there have been on the part of other newspaper publishers more serious examples of contempt. Perhaps this is not in the very highest category of gravity. But it is high enough. It is, as I repeat, a very serious contempt.

SUBMISSIONS OF MR HARRIS ON PENALTY
24. I should set out the submissions offered by Mr Harris on penalty. Mr Harris spoke forcibly to what he had written in his submissions. He wrote:
    "4. Penalty

4.1 No harm in fact resulted from the publication. There is
    no suggestion any juror in the first trial actually saw the
    matter.

4.2 The Full Court's decision made it clear in relation to
    the second trial that there can be no finding of actual harm
    having resulted in respect of it.

4.3 The Advertiser has no previous convictions for
    sub judice contempts.

4.4 The Advertiser has an established responsible system for
    'legalling' stories. In this case, contrary to instructions
    from the editor, the system broke down due to a combination
    of pressure of work and failure to appreciate the
    significance of publication of small portions of the
    material. The article is clearly a genuine attempt to
    fairly summarise the course of the trial.

4.5 Since these proceedings, the Advertiser has taken steps
    to remind editorial staff of the system and obligations for
    checking to ensure compliance with the law.

4.6 The Advertiser takes its responsibilities seriously.
    There will be no deterrent effect upon it in relation to a
    penalty, because the Advertiser already seeks to do its
    utmost to avoid contempt.

4.7 The Advertiser should not be punished in respect of any
    perceived sins on the part of other media publishers.

4.8 The Advertiser has been co-operative with the
    authorities and entered a prompt plea.

4.9 This was a one off matter due to a breakdown of a system
    which did not in fact result in any harm and where it is
    accepted by the prosecution that there was no intent to
    cause harm."

COURT'S COMMENTS ON SUBMISSIONS OFFERED BY MR HARRIS ABOUT PENALTY
25. Submissions 4.1 and 4.2 are correct. They are correct because of good luck. I have spoken of 4.3. I cannot regard pressure of work as any excuse. Nor do I think it correct to speak, as does paragraph 4.4, of a small portion of the material. The whole of the tenor of the article is relevant. The whole tenor makes it a contempt. Go back to my reciting of the remarks of the Director. He said "... the entire article is one that will elicit sympathy for the victim ... and conversely creates prejudice for the accused". That is correct and obviously correct.

26. I accept the comments in 4.5. I accept the first sentence in 4.6. But I think that "imposed deterrence" must play a part in the penalty. I think the matter is too grave to permit the ignoring of deterrence.

27. I certainly agree with 4.7. I give credit for the matters in 4.8. It was a "one off" matter. There was no harm done in the sense that this jury did not see the article. That was due to action by others.

DEFENDANT'S SYSTEM FOR CHECKING LEGAL ISSUES RELATING TO PROPOSED STORIES
28. It was proved that the defendant had had a system of "Legal Training" given to journalists by the lawyers who act for the defendant. I sought, and was given, more details of this "Legal Training". In addition to lectures journalists were supplied with written information. I say no more than that the defendant deserves, and gets, modest credit for instituting this training. But there has been no training since 1993. There is no evidence that the relevant journalists profited from the training. And perhaps it should have been more rigorous.

PENALTY
29. Mr Harris submitted that there should be no penalty. I cannot agree. The contempt is too serious to be passed by with a mere reprimand. The Director asked for no "extraordinary penalty". Consistently with the moderate attitude which he had taken, he asked for a clear message of warning to be sent to the media. I think that my remarks will do that. But a reprimand (which the defendant deserves) plus warning words will not suffice. The Director's attitude and his acceptance of facts put forward by the defendant must operate to reduce the penalty which the publication of the article would merit. We must be thankful that the jury did not see the article. But, in order to gauge the seriousness of the matter, one must take into account what might have happened had a newspaper got through to the jurors. I have already commented on the devastating effect that that could have had. The publication of such an article with the particulars referred to by the Director and the whole tenor of which amounted to a contempt is very grave indeed. I fasten on a pecuniary penalty. The penalty is small. It is small largely by reason of the attitude of the Director. I take great notice of his attitude because he is the representative of the community.

30. The defendant must pay a fine of $10,000 and the costs of the Director.