The State of Western Australia v Armstrong

[2007] WASCA 204

THE STATE OF WESTERN AUSTRALIA -v- ARMSTRONG [2007] WASCA 204

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 204
Court:	THE COURT OF APPEAL (WA)
Case No:	CIV:1036/2007	Heard:	3 AUGUST 2007
Coram:	MARTIN CJ WHEELER JA MILLER JA	Delivered:	4/10/07
No of pages:	26	Judgment Part:	1 of 1
Result:	Motion dismissed
Category:	B
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Parties:	THE STATE OF WESTERN AUSTRALIA PAUL ARMSTRONG WEST AUSTRALIAN NEWSPAPERS LIMITED (ACN 008 667 632)
Catchwords:	Contempt of court Whether letter to editor of newspaper had a real (or clear) and definite tendency to prejudice a fair trial Publication on morning of one of final days of trial Letters complaining about inadequacy of judicial system in relation to victims of crime Complaint that there will be no justice until change is made Jury discharged by reason of publication Whether jurors likely to be sympathetic towards victim and family Whether publication had a tendency to prejudice, obstruct or interfere with due administration of justice
Legislation:	Supreme Court Act 1935 (WA), s 43
Case References:	Amalgamated Television Service Pty Ltd v Marsden (1998) 43 NSWLR 158 Attorney-General for New South Wales v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695 Attorney-General v Times Newspapers Ltd [1974] AC 273 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 Consolidated Press Ltd v McRae (1955) 93 CLR 325 Duff v The Queen (1979) 39 FLR 315 Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 Hinch v Attorney-General (Vic) (1987) 164 CLR 15 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 Kanaan v The Queen [2006] NSWCCA 109 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 R v David Syme & Co Ltd [1982] VR 173 R v Glennon (1992) 173 CLR 592 R v Truth Newspapers (Unreported, VICSC, 4571 of 1993, 16 December 1993) R v West Australian Newspapers Ltd; Ex parte DPP (WA) (1996) 16 WAR 518 Re Coroner's Court of Western Australia; Ex parte Porteous [2002] WASCA 144; (2002) 26 WAR 483 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 Webb v The Queen (1994) 181 CLR 41 Western Australia v West Australian Newspapers Ltd (2005) 30 WAR 434 Witham v Holloway (1995) 183 CLR 525 Yuill (1993) 69 A Crim R 450

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- ARMSTRONG [2007] WASCA 204 CORAM : MARTIN CJ

WHEELER JA
MILLER JA

HEARD : 3 AUGUST 2007 DELIVERED : 4 OCTOBER 2007 FILE NO/S : CIV 1036 of 2007 BETWEEN : THE STATE OF WESTERN AUSTRALIA

Applicant

AND

PAUL ARMSTRONG
First Contemnor

WEST AUSTRALIAN NEWSPAPERS LIMITED (ACN 008 667 632)
Second Contemnor

Catchwords:

Contempt of court - Whether letter to editor of newspaper had a real (or clear) and definite tendency to prejudice a fair trial - Publication on morning of one of final days of trial - Letters complaining about inadequacy of judicial system in relation to victims of crime - Complaint that there will be no justice until change is made - Jury discharged by reason of publication - Whether jurors likely to be sympathetic towards victim and family - Whether publication had a tendency to prejudice, obstruct or interfere with due administration of justice

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Legislation:

Supreme Court Act 1935 (WA), s 43

Result:

Motion dismissed

Category: B

Representation:

Counsel:

Applicant : Mr R E Cock QC & Mr K D A Seneviratne
First Contemnor : Mr T D Blackburn SC & Ms C Galati
Second Contemnor : Mr T D Blackburn SC & Ms C Galati

Solicitors:

Applicant : Director of Public Prosecutions (WA)
First Contemnor : Edwards Wallace
Second Contemnor : Edwards Wallace

Case(s) referred to in judgment(s):

Amalgamated Television Service Pty Ltd v Marsden (1998) 43 NSWLR 158
Attorney-General for New South Wales v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695
Attorney-General v Times Newspapers Ltd [1974] AC 273
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1
Consolidated Press Ltd v McRae (1955) 93 CLR 325
Duff v The Queen (1979) 39 FLR 315
Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351
John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344

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Kanaan v The Queen [2006] NSWCCA 109
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
R v David Syme & Co Ltd [1982] VR 173
R v Glennon (1992) 173 CLR 592
R v Truth Newspapers (Unreported, VICSC, 4571 of 1993, 16 December 1993)
R v West Australian Newspapers Ltd; Ex parte DPP (WA) (1996) 16 WAR 518
Re Coroner's Court of Western Australia; Ex parte Porteous [2002] WASCA 144; (2002) 26 WAR 483
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Webb v The Queen (1994) 181 CLR 41
Western Australia v West Australian Newspapers Ltd (2005) 30 WAR 434
Witham v Holloway (1995) 183 CLR 525
Yuill (1993) 69 A Crim R 450


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1 MARTIN CJ: The Director of Public Prosecutions moves the Court for orders that the editor and publisher of The West Australian newspaper be punished for publishing material in The West Australian on 11 December 2006. It is alleged that material constitutes a contempt of court because it was likely or calculated or had the tendency to interfere with the course of justice.

2 Proceedings of this kind are now, in the first instance, returned before a single judge of the General Division of the court. However, in this instance, because I was advised that it was not proposed to adduce any oral evidence and that significant questions of principle were likely to arise, pursuant to s 43 of the Supreme Court Act 1935 (WA), I referred the matter to the Court of Appeal for consideration and determination.

3 I have had the advantage of reading the reasons to be published by Wheeler and Miller JJA. As Miller JA has set out the facts and circumstances which give rise to the motion, and the evidence which was adduced, it will be sufficient if I shortly set out the reasons which have led me to conclude that the motion must be dismissed.

The nature of contempt proceedings

4 In Consolidated Press Ltd v McRae (1955) 93 CLR 325, 333, Dixon CJ, Kitto and Taylor JJ enunciated the following principle:

"Contempt of court is a criminal offence punishable summarily by the Supreme Court. Like every other offence the facts by which it is made out must be proved by admissible evidence to the satisfaction beyond reasonable doubt of the tribunal. Uncertain inferences from inexact proofs will not support such a charge."

5 This principle is of particular significance in this case because the paucity of evidence adduced by the prosecutor has deprived the motion of any prospect of success, for the reasons which I will explain.

The test to be applied

6 Before a person can be convicted of contempt, the prosecutor must prove beyond reasonable doubt that the person is guilty of conduct that poses a real risk to the administration of justice in the particular case (see Hinch v Attorney-General (Vic) (1987) 164 CLR 15; Re Coroner's Court of Western Australia; Ex parte Porteous [2002] WASCA 144; (2002) 26 WAR 483.

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7 Although there have been various attempts at judicial definition of the test to be applied to the determination of whether there has been conduct which posed a real risk to the administration of justice, the formulation of Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592 to the effect that the prosecutor must prove beyond reasonable doubt that the publication has "as a matter of practical reality, a real (or clear) and definite tendency to interfere with the administration of justice, that is, to prejudice a fair trial (605)" has been adopted by the Full Court of this court (see R v West Australian Newspapers Ltd; Ex parte DPP (WA) (1996) 16 WAR 518, 533).

Freedom of speech and the administration of justice

8 Charges of contempt by publication require the court to balance the public interest in freedom of speech with the public interest in the administration of justice (R v West Australian Newspapers Ltd; Ex Parte DPP (WA).

9 Freedom of speech is one of the hallmarks of a democratic society. Its importance and the public interest which requires courts to minimise interference with freedom of speech has been recognised in many cases – see for example, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104. The importance of minimal interference with freedom of speech is one of the reasons why the summary jurisdiction to punish for contempt is a jurisdiction which is to be exercised "with great caution" (see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370).

10 One of the interests that will, in some circumstances, justify interference with freedom of speech is the public interest in the due and proper administration of justice.

11 Just as the law of contempt does not exist to protect the private interests of an accused person, but to protect the public interest in the due administration of justice (R v West Australian Newspapers Ltd; Ex parte DPP (WA), citing Attorney-General v Times Newspapers Ltd [1974] AC 273), so freedom of speech is recognised and protected by the courts not in order to further the private interests of publishers, but to protect the public interest in the unconstrained expression of ideas and the provision of information. As Mahoney J observed in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 the objectives which might be achieved by giving full weight to the protection of freedom of expression include that:

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"ideas may be developed freely, culture may be refined, and the arrogance or abuse of power may be controlled. (720)"

12 The efficient administration of justice depends heavily upon public confidence in the fairness and integrity of the processes employed. Public confidence in the integrity of the judicial process requires that conduct which, as a matter of practical reality, has a real or clear and definite tendency to cause jurors to take extraneous matters into account when considering their verdict, be constrained and where necessary, punished. However, public confidence in the administration of justice also depends upon the freedom of the printed and electronic media to provide the public with full and complete information as to legal proceedings. It also depends upon full and open public debate about events which occur in the courts. Subject to the limited constraint imposed by the law of contempt to which I have referred, every member of our society must be free to express his or her view in relation to the adequacy and propriety of the systems and processes used in the administration of justice. It is the function of the courts to protect the freedom of that debate, irrespective of the stridency of the criticisms that may be directed to the courts in its course. Public confidence in the courts and in the administration of justice requires nothing less.

13 Commentary on and criticism of events which occur in the courts is, by its nature, likely to be published at or about the time those events occur. And that is the time at which its publication is most likely to be effective in stimulating public debate and furthering the public interest to which I have referred. Reporting of, and commentary upon legal proceedings serves a vital public interest, by providing information to the public about what is occurring in our courts. Such publications should only be constrained when it is established, beyond reasonable doubt, that they have the proscribed effect upon the administration of justice to which I have referred. That is why, with respect, I do not share the view expressed by Miller JA that it is highly undesirable for a newspaper to publish letters to the editor which contain material relating to a criminal trial which is being conducted at the same time. In my respectful opinion, it is no part of this Court's function to advise editors of newspapers what is desirable or wise. Our function is limited to the ascertainment of whether the prosecutor has proven, to the requisite standard, that conduct has occurred which has a real and definite tendency to interfere with the administration of justice.

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The particulars of the charge

14 Miller JA has set out the particulars of the charge relied upon by the prosecutor (as amended during the hearing). In my opinion, two out of three of the so-called particulars were of no assistance to the prosecutor.

15 The assertion that "[t]he publication was likely or calculated or had a tendency to prejudice, obstruct or interfere with the due administration of justice" is of course not a particular of a charge, but merely the enunciation of the test which has to be met if the prosecution is successful. Further, the assertion that the published material had that effect "by impliedly asserting that justice would not or alternatively could not be done by them [the jurors] in the discharge of their duties according to law" is difficult to comprehend. If the jurors discharge their duties according to law, what is it that would cause the conclusion that justice would not or could not be done? I am unable to see how an implication of that kind, even if it did arise from the published material, could constitute a contempt of court.

16 In my view, the only particular, properly so called, which was capable of sustaining the prosecutor's case, was the assertion that the published material might have engendered antipathy toward the accused.

17 But many of the propositions relied upon by the prosecutor and which were said to arise from the published letter, had nothing whatever to do with the particular accused, but were generic observations about the justice system. The propositions that victims of crime do not get sufficient respect or that the system of justice is weighted in favour of an offender, are so generic that I find it impossible to see how they could have any possible relevance to an allegation of contempt of court. Debate conducted at that level of generality could not, in my opinion, ever have the proscribed effect of interfering with the administration of justice.

18 A similar observation may be made about the assertion that the deceased person was, until his death, living and breathing and a son, possibly a brother, a grandson, an nephew, a cousin and a friend to various people. Such an observation is likely to be true of any male person who has met their death. I am again unable to see how any observation of that kind could possibly have the proscribed tendency to interfere with the administration of justice.

19 Put another way, observations of this kind are entirely incidental to the issues which the jury was likely to address in the course of its deliberations (see Hinch v Attorney-General (Vic) at (28). If debate

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conducted at that level of generality is considered likely to interfere with the course of criminal proceedings, public debate in relation to the administration of justice would be severely curtailed and the important public interest to which I have referred thwarted.

The facts sustained by the evidence

20 The first point which should be made in relation to the facts established by the evidence is that the decision of the District Court judge to discharge the jury as a consequence of the publication of the material, the subject of these proceedings, is entirely irrelevant to the question of liability (see R v West Australian Newspapers; Ex parte DPP (WA); R v David Syme & Co Ltd [1982] VR 173, 176, and compare Hinch and Glennon). Not only does that irrelevance arise from general principle, but also, in this particular case, because the material before the trial judge was quite different to the material before this Court.

21 That is because the prosecutor did not lead any evidence as to the course of the trial prior to the morning upon which it was aborted. The consequence of that omission is that the prosecutor has failed to establish that there was any questioning by a defence lawyer of an ambulance officer about the location of "the body" or that the judge posed questions relating to the location of "the body". On the evidence before us, it is quite possible that those events did not occur during the course of the trial which was aborted. And if those events did not occur, it is quite possible that those persons who comprised the jury in that trial would not have associated the letter with the trial, despite the reference to the date of death being 26 November 2005. Or if the jurors in question had noticed the coincidence of the date referred to in the letter with the date of death in the trial in which they were involved, if the other assertions made in the letter were inaccurate, it is unlikely that they would have given any significance or weight to any of the assertions contained in the letter. If, as I conclude on the basis of the limited evidence available before the Court, there was a real possibility that members of the jury reading the letter might not have associated it with the trial with which they were involved or, had they done so, would have given it the assertions contained in the letter little or no weight, it is impossible to conclude that publication of the letter had the clear or definite tendency to interfere with the administration of justice. The motion should therefore be dismissed.

22 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of both the Chief Justice and Miller JA. Miller JA has summarised the facts and the law, in terms with which I agree. I agree

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that this application should be dismissed. So far as the law is concerned, there seems to be no difference, save perhaps for a difference of emphasis, between the reasons of the Chief Justice and of Miller JA. The Chief Justice has noted the important value of freedom of speech, which, of course, is one factor which has shaped this area of the law of contempt. Both their Honours have also explained that, although the letter the subject of the application referred to both cross-examination, and questions from the judge, about "the body", there was adduced no evidence in the application which could establish that such references were, in fact, made during the course of the trial to which, it was submitted, the letter must be taken to have referred.

23 The State submitted that it might reasonably be inferred, from the tone and content of the letter, that it was written, and therefore published, in close proximity to the date of the trial to which it referred. It also submitted that, because the letter referred to a date of 26 November 2005, and because it was plain from the indictment which was tendered to us that that was the date of the death with which that trial was concerned, we should infer that it was clear that the letter referred to the trial of Mr Becker and that the jury would have understood it to have been referring to that trial. I am prepared, for the purposes of these reasons, to make that assumption, although it seems to me that the jury would not have understood the letter as referring to the trial of Mr Becker unless there had, in fact, during the course of that trial, been references to the deceased young man as "the body" in the contexts to which the letter referred.

24 Taking the case against the contemnors at its worst - that is, assuming for the present, although it has not been proved, that there were in fact references to the dead young man as "the body" and that the jury would have understood the letter as referring to the trial of Mr Becker - I can understand why the trial judge was concerned. That concern would have arisen from a recognition that the task of a jury is a very difficult one. The burden of responsibility felt by members of the jury is perhaps underestimated by those who have not served on a jury, or who do not work closely with jurors on a regular basis. Their decision, if mistaken, may either have the result of leading to the imprisonment of a person who is innocent of an offence, or of releasing into the community someone who may be guilty of a serious crime. Even if their verdict is correct, most jurors will appreciate the impact of their decision, one way or the other, both on the accused and upon either the victim of an alleged crime or the family or friends of the victim. A recognition of that understandable concern about the outcome of their deliberations, explains

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why trial judges very frequently direct juries about the need to approach their deliberations without any sympathy one way or the other, and without looking to any consequences of their decisions. A recent publication by a person who had been an Australian juror mentions, more than once, the sense of responsibility felt by the jurors in his particular case (Secrets of the Jury Room, Malcolm Knox (Random House (2005) at, eg, 253, 300 - 306).

25 There is therefore cause for concern about any publication which appeals directly to the concerns mentioned above. Such a publication might suggest to jurors in a particular case that the crime with which they are concerned is so dreadful, or the effects upon the victims of it so severe, that it is particularly important that an offender be punished, or it might suggest to jurors in a particular trial that they may be subject to public odium if they decide in a particular way. Conversely, it might suggest to a particular jury that the consequences to the accused of conviction would be so appalling that it is their duty to refrain from convicting. Publications of this kind have the potential to reinforce the ordinary and commendable emotions of sympathy and concern which jurors must put aside if they are to perform their task dispassionately. The problem with the letter in this case was its direct appeal to the emotions - including necessarily the emotions of jurors - in respect of a particular trial.

26 Most of the cases cited to us dealt with the presumption that jurors can exercise critical judgment in relation to what they see in the media, and can generally be relied upon to put aside prejudicial publicity. However, "prejudicial" in this context most often refers to the publication of information which would be inadmissible in the trial, or has not been led as evidence (such as the prior convictions of an accused person), or to a factually inaccurate or slanted report of proceedings.

27 Where information is distorted, it seems to me that jurors can readily understand that they are in a much better position than outsiders to assess all of the evidence in its context. Where inadmissible material may have come to a jury's attention, it is generally possible for the judge to explain to the jury, in broad terms, why the material is inadmissible or irrelevant, or at least how the interests of fairness require that they should act only upon the evidence placed before them in court. Where, however, the publication is one which reinforces the appreciation that the events in which they are involved have, or may have, appalling consequence, then it is more difficult to assume that jurors can readily put such matters aside.

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28 The cases to which we have been referred, which deal with the engendering of sympathy, either for an accused or for the victims of crime, are somewhat more cautious about the ability of jurors to put aside considerations of that kind, than are the cases concerned with publication of information only. R v Truth Newspapers (Unreported, VICSC, 4571 of 1993, 16 December 1993) involved a publication dealing at length with the adverse consequences of the trial upon the accused. In that case, J D Phillips J was satisfied that the article (published shortly before the jury was to retire) was a contempt. In the High Court, in Webb v The Queen (1994) 181 CLR 41, there had been an incident involving a juror who had given a bunch of flowers to a person at the courthouse, with the request that it be given to the mother of the deceased person, at a trial of two people charged with the deceased's murder. The case was therefore not one involving an alleged contempt, but a question of whether there had been a reasonable apprehension of bias. Although the three members of the High Court in the majority it that case (Mason CJ, Toohey and McHugh JJ) formed the view that the trial judge had acted properly in directing that the trial should proceed, it is to be noted that two members of the court (Brennan and Deane JJ) were of a different view, and that most members of the court recognised the possibility that sympathy might lead to a reasonable apprehension that the jury might not be impartial (Mason CJ and McHugh J at 55 - 56, Brennan J at 61, Deane J at 76 - 78). Only Toohey J took a different view of the relevance of sympathy (at 88). Finally, in Hinch v Attorney-General (Vic) (1987) 164 CLR 15, the inflaming of emotion against the accused appears to have been considered to be of relevance: see the primary judge's findings, referred to at 30 - 31, 35, 45 and the appendix at 77 - 80.

29 Against that background, I turn to the letter in question here. It reminded the jury that the deceased had been until recently a "living, breathing" human being. While on one level that was obvious, it nevertheless would have had the tendency to reinforce in the mind of any juror the enormity of what had occurred; that is, the premature death of that person. It invited the jurors to speculate upon the deceased's relationships, and on the dreadful consequences for members of his family and his friends of his death.

30 If, indeed, the deceased had been referred to as "the body", the letter pointed out to members of the jury what an ordeal it must be for those who cared about the deceased to hear him spoken of in a way which stripped him of his personality and which might be thought to be disrespectful. As to these references, the contemnors submitted that, even if the deceased had been referred to in that way, members of the jury

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would necessarily regard a complaint of this kind as "extravagant". I do not agree. It is, it seems to me, a frequent complaint, in the public debate on the subject, that victims of crime are treated in a way which is impersonal and disrespectful, during the course of the trial process. To some extent, this is unavoidably so, but it seems to me that members of a jury would not have much difficulty in understanding and sympathising with a complaint of this kind.

31 The matters which I have identified seem to me to be the principal matters of concern in the letter. The final sentence, which asserts that "the system is so weighted in favour of the offender that until changes are made there will be no justice" is a complaint of such a general kind as to be almost devoid of content. It seems to me that it would not have any effect by way of engendering sympathy or prejudice, or influencing a juror in any way. It can be set aside.

32 It can be seen from the analysis I have undertaken, that it is my view that there would be some grounds for real concern that the letter might have a tendency to influence jurors. However, I do not consider that, even if there had been references to the deceased as "the body", the letter would have engendered a degree of sympathy which was unable to be countered by an appropriate direction from the trial judge, and it therefore seems to me that it has not been established, beyond reasonable doubt, to have created a real risk to the administration of justice. Briefly, my reasons for that conclusion are as follows.

33 Even if one accepts that the deceased had been referred to as "the body", this is but one complaint about what must have been brief passages during the course of a trial which commenced on 4 December 2006 and was due to conclude either on or shortly after 11 December 2006. It was not therefore suggested that the entirety, or even most, of the cross-examination, or the entirety, or most, of the proceeding, had been disrespectful or distressing in any way which was particularised. One would expect an allegation about such a small part of the trial to have a limited effect upon the jury.

34 So far as the balance of the letter was concerned, while there was a reference to the fact that the deceased had been a living, breathing teenager with family and friends (who by implication would, of course, mourn his loss) that theme was not developed at length and that fact which would, no doubt, have occurred to the jurors on one or more occasions during the course of the trial. It may be that in some trials an observation of this kind is particularly likely to have an impact. For

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example, if the defence case involves making allegations about the conduct of the deceased, or if the defence is perhaps one which might be perceived as "technical", one can more readily perceive that sympathy for the deceased and his family may make it more difficult to evaluate those matters dispassionately. However, there was no information before us about the nature of the particular allegations or of the defence in this case, and the applicant's submission, as I understand it, was one of a general tendency to prejudice the administration of justice, rather than of a tendency referable to the particular circumstances of this case.

35 To summarise, even if there had been evidence that the letter in question, in its references to "the body", had referred to events in the course of the trial of Mr Becker, I would not have concluded that it had such a real and substantial tendency to prejudice the course of the trial that it should be found to constitute a contempt. It fell into the category of publications which might well have such a tendency; that is, appeals to the emotion and to sympathy with either the prosecution (in this case) or the defence, published during the course of a trial, and referable to it. However, it lacked force and detail. In any event, as has been pointed out, the references to "the body" must be set aside, in which case there is insufficient evidence to justify a conclusion that it would have been understood by this jury to refer to the trial of Mr Becker.

36 MILLER JA: This is a motion for contempt of court relating to the publication of material in The West Australian on 11 December 2006.

37 The first contemnor is the editor of The West Australian. The second contemnor is a registered company whose registered office is Newspaper House, 50 Hasler Road, Osborne Park. The West Australian newspaper is published daily in the metropolitan area of Perth and throughout other parts of Western Australia.

Motion for contempt of court

38 The applicant has moved that the contemnors be punished for their contempt of court in publishing in The West Australian on 11 December 2006 in the Letters page a letter to the editor of the newspaper headed Respect in court which was to the following effect:

"I don't know why I do these things to myself. I had the opportunity to briefly sit in on a trial. During the short time I was there I listened to the defence lawyer question an ambulance officer about the location of 'the body'.

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The judge had some questions also relating to the location of 'the body'. Until November 26 last year, the dead youth was a living breathing teenager. He was a son and possibly a brother, a grandson, a nephew, a cousin and a friend to various people.

Why did he become just 'the body'? How distressing is it for people to hear a person they loved and cared for being constantly referred to as 'the body'?

Just when will the judicial system wake up and recognise that victims are, or were, real people who deserve the respect that they are due. The system is so weighted in favour of the offender that until changes are made there will be no justice.

Steve Robinson, co-convenor Homicide


Victims Support Group (WA) Inc."

39 Publication of the material complained of is alleged to have been likely or calculated or had the tendency to interfere with the course of justice.

40 Particulars contained within the motion reveal that there is presently an indictment pending in the District Court at Perth in which Jake Dylan Becker ("the accused") is on trial on charges of unlawful killing and attempting to pervert the course of justice. A trial of the accused commenced in the District Court on 4 December 2006 but ended on 11 December 2006 when the jury was discharged by the learned trial Judge without returning a verdict.

41 The jury was discharged by reason of the publication in The West Australian on the morning of 11 December 2006 of the letter set out above. The matter was brought to the attention of the learned trial Judge by the Crown prosecutor on the morning of 11 December 2006. After hearing submissions from the prosecutor and defence counsel the learned trial Judge concluded that the publication of the letter on that morning, at a point where the trial was about to enter its final stages occasioned such prejudice to the accused that no direction to the jury could cure that prejudice.

42 The applicant contends that the publication of the letter was likely or calculated or had the tendency to interfere with the course of justice. As amended at the hearing, the pertinent particulars relied upon are:

(a) The material published was likely, or was calculated, or had a tendency to influence members of the jury at the trial of the accused by impliedly asserting that justice would not or

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alternatively could not be done by them in the discharge of their duties according to law.

(b) There was a likelihood that members of the jury being conscious of their role as the arbiters of fact at the trial of the accused would have read the material and there was a danger that they may be influenced (by it), to be sympathetic towards the victim and his family and thereby engender antipathy toward the accused.

(c) The publication was likely or calculated to have a tendency to prejudice, obstruct or interfere with the due administration of justice.

The evidence before the Court

43 In addition to a statement of admitted facts (which sets out the formal details of the trial and the publication in question), the applicant tendered by way of annexures to an affidavit the indictment faced by the accused, the transcript of the learned trial Judge's reasons for discharging the jury, the letter complained of, an extract from the newspaper of 11 December 2006 revealing the identification of the editor of the newspaper and an ASIC company extract revealing the corporate details of the second contemnor.

44 Also tendered was an affidavit of Steven James Robinson. He was the author of the letter to The West Australian. He wrote the letter on 8 December 2006, and on that day was telephoned by a staff member of The West Australian and told that his letter was being considered for publication. He was telephoned again on the weekend by a staff member from The West Australian and asked if he would be willing to remove the name of the deceased from the letter. Although he does not say so, it would seem that he did agree to that being done.

45 The applicant relies on this affidavit to establish that the second contemnor was aware of the fact that the letter related to a trial which was then currently in the District Court.

46 Other than the transcript of the proceedings which led to the discharge of the jury, nothing was put before the Court about the evidence led at trial. In particular, the Court was not informed about whether (a) there had been questions asked by defence counsel or the trial Judge about "the body"; or (b) the deceased was identified as a "teenager". These were matters referred to in the letter published by the second contemnor, but in the absence of material to establish that they were in fact the subject of

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evidence, there is simply no evidence before the Court to judge whether or not those references constituted a contempt.

47 All that the applicant is left with is an assertion that the letter constituted a contempt because:

(i) the letter related to the trial of Mr Becker because reference was made to the date of death of the deceased being 26 November 2005, which was the date of death alleged in the indictment;

(ii) the letter contended that until 26 November 2005 the deceased was a "living breathing … son and possibly a brother, a grandson, a nephew, a cousin and a friend to various people";

(iii) the letter called for a "wake up" of the judicial system because of its failure to respect that victims of crime were real people;

(iv) the letter stated that "the system" is so weighted in favour of the offender that until changes are made there will be no justice.

48 It will be seen that the failure of the applicant to adduce any evidence that there was reference at Mr Becker's trial to the deceased being "a body" robbed the letter of much of its meaning. Assuming that the letter can be taken to refer to the trial of Mr Becker, the applicant was compelled to rely on three contentions to support the motion. They were:

(i) there was reference to the fact that until his death, the deceased was a living, breathing person who was related to or a friend of various people;

(ii) victims of crime do not get sufficient respect in crime;

(iii) the system of justice is so weighted in favour of the offender that until changes are made there will be no justice.

49 As counsel for the contemnors pointed out, the final paragraph of the letter was predicated upon reference in earlier paragraphs to evidence at trial of the deceased being referred to as a "body". Absent that evidence, the final paragraphs of the letter lost its meaning. It was because the letter-writer had allegedly heard evidence about "the body" that he was driven to write to the letters pages of the second contemnor. The alleged weighting of the system which was said to be so much in favour of the offender meant that without changes there would be no justice because of the failure to give sufficient weight to the position of victims (my emphasis).

50 In my opinion, the letter when viewed in the manner contended for by the applicant is given an artificial meaning. It is impossible to read it

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in two paragraphs (the second and third sentences of the second paragraph and the fourth paragraph) and give it any real meaning. The second and third sentences of the second paragraph also need to be read without reference to the word "teenager".

The test for contempt of court

51 For the letter complained of to be a contempt of court it must be so proven beyond reasonable doubt. That is because all proceedings for contempt are criminal in nature: Witham v Holloway (1995) 183 CLR 525 at 534; R v West Australian Newspapers Ltd; Ex parte DPP (1996) 16 WAR 518 at 533.

52 The test for determining whether there has been a contempt of court is set out in R v West Australian Newspapers Ltd (supra) at 533 in the following terms:

"Although the appropriate test for determining whether there has been a contempt of court has been formulated in a variety of ways by members of the High Court, there is not a great deal of difference in substance between those formulations. For the present purposes, it is sufficient to adopt the statement by Mason CJ and Toohey J in R v Glennon [(1992) 173 CLR 592] (at 605), that a finding of contempt arising from publicity depends upon proof that the publication has, as a matter of practical reality, a real (or clear) and definite tendency to prejudice a fair trial."

53 The applicant contends that the letter was in sufficient detail for members of the jury to identify it as referable to the trial of the accused. The trial of the accused was in relation to a count of unlawful killing on 26 November 2005 and a count of attempting to pervert the course of justice on the same day. It is the first count that is important for the purposes of this case.

54 In my opinion, by referring to the date (26 November 2005) the writer of the letter identified to any juror reading page 18 of The West Australian on the morning of 11 December 2006 that what was being addressed was the case of the accused being tried in the District Court that day.

55 It is contended that the publication of the letter, on the finding of the trial Judge, clearly had a tendency to interfere with the course of justice. However, the actual consequences which flow from a publication, whether it be the discharge of the jury in a criminal trial or otherwise, are irrelevant to the existence of a contempt: see R v West Australian Newspapers Ltd (supra) at 533 and cases cited at 533 - 534.

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The question is the inherent tendency of the matter published: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 46 - 47, 69 - 70, and 85.

56 The question for determination in this case is whether the publication of the letter presented a real risk of serious prejudice to a fair trial. In Hinch v Attorney-General (Vic) (supra) Mason CJ at 28 said:

"In assessing whether a particular publication presents a real risk of serious prejudice to a fair trial, i.e., serious injustice, it is necessary to ascertain whether the references to the subject-matter of the litigation are central or merely incidental to the topic of public discussion. If the references to an issue in the litigation are central to the discussion the likelihood of prejudice or serious prejudice is all the stronger. If, however, the references to the litigation are merely incidental, in the majority of cases there is unlikely to be a real risk of prejudice to the litigation."

57 His Honour added at [28]:

"Whether a particular publication amounts to a contempt in the sense just discussed depends upon a number of factors. They include the nature and the extent of the publication, the mode of trial (whether by judge or jury) and the time which will elapse between publication and trial."

58 It is important to bear in mind some of the warnings about the caution which is required in the exercise of the summary jurisdiction to punish for contempt. In John Fairfax & Sons Pty Ltd v McRae (supra) Dixon CJ, Fullagar, Kitto and Taylor JJ said at 370 - 371:

"… because of its exceptional nature, this summary jurisdiction has always been regarded as one which is to be exercised with great caution, and, in this particular class of case, to be exercised only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case. A penalty will not be imposed in its exercise 'unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference' - per Cotton L.J. in Hunt v. Clarke (1889) 58 L.J. (Q.B.) 490, at p. 493, quoted by Lord Russell C.J. in Reg. v. Payne (1896) 1 Q.B. 577 at p. 581. Sometimes the court may think that, technically speaking, a contempt has been committed, but that, because the tendency to embarrass is slight, or because of special circumstances, it ought to refuse to exercise its summary jurisdiction."

Submissions of the applicant

59 The first submission of the applicant is that members of the jury were likely to have read the letter on the morning of the trial on 11 December

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and would have been likely to have been influenced by it to be sympathetic towards the victim and his family, thereby engendering antipathy toward the accused.

60 The second submission of the applicant is that members of the jury were likely to have read the letter and to have been influenced by it because it would have caused them to think that there could be no justice in the case by reason of the scales being weighted unduly in favour of the accused.

61 This second submission has to overcome the difficulty that the letter, when read in context, was complaining that victims are given no respect, particularly because of reference to a deceased person as "the body" and thus the scales are out of balance. However, the letter cannot be read in that way for the purposes of this motion. There is simply no evidence before the Court that there was any reference at trial to "the body". It therefore becomes difficult to make sense of the applicant's submissions.

62 In the end, the applicant was driven to submit that because of the publication of the letter on the morning of one of the final days of the trial of Mr Becker, there was a real likelihood that an ordinary, reasonable juror would have been prejudiced against the accused because of the references in the letter to the lack of respect given by the judicial system to victims of crime and the prejudice that would have been occasioned to the accused by reason of reference to the loss suffered by relatives and others as a result of the death of the deceased.

63 The submission is made notwithstanding the fact that in every criminal trial, but particularly in homicide trials, the trial Judge will direct the jury that as a matter of law they must avoid prejudice (for or against the accused), sympathy or sentiment. It is submitted that no such direction could overcome the prejudice likely to have been engendered in a juror in the trial who read the letter on the morning of 11 December 2006.

Submissions of the contemnors

64 The contemnors submit that criticism of the kind made in the letter is common place and has been heard before. This is said particularly of the proposition that the system is so weighted in favour of the offender that until changes are made there will be no justice. It is suggested that it is a reflection on the intelligence of every juror reading the letter to suggest otherwise. It is also contended that in every case there is natural sympathy for the relatives and friends of the victim, especially when there

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has been a death. Such sympathy is a matter that the trial Judge will direct the jury to ignore and it can be expected that modern-day jurors will take notice of and apply such a direction to their reasoning.

65 Various cases are referred to in support of the proposition that the ordinary juror would resist the influence of comments such as those that appeared in the letter in question. In particular, reference is made to Duff v The Queen (1979) 39 FLR 315 where Brennan, McGregor and Lockhart JJ said at 333 that the effect of (such) articles must be assessed in the light of the times in which we live. The passage referred to ends with the words "It is wrong to assume that jurors do not have or will not exercise a critical judgment of what they see, read and hear in the media". See also Kanaan v The Queen [2006] NSWCCA 109 at [24] et seq.

66 I respectfully agree that today's juror is a person who lives in a world of increased and complex technology in which many influences are brought to bear. It can be taken that jurors are capable of discharging their duties in the courtroom by differentiating between evidence and opinion or news expressed outside the court: Yuill (1993) 69 A Crim R 450 per Kirby ACJ at 453 - 454.

67 The juror of whom I speak is the ordinary reasonable juror. He or she was described (in terms of a reader of material) by Hunt CJ at CL in Amalgamated Television Service Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 in the following terms:

"The ordinary reasonable reader (or listener or viewer) is a person of fair average intelligence (Slatyer v Daily Telegraph Newspaper Co Ltd (1908)6 CLR 1 at 7), who is neither perverse (ibid at 7), nor morbid or suspicious of mind (Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577 at 586), nor avid for scandal: Lewis v Daily Telegraph Ltd (at 260). That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (at 277); Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; Lang v Australian Consolidated Press Ltd [1970]2 NSWR 408 at 412; Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 at 340."

68 I accept that an ordinary juror would understand that a letter to a newspaper expresses the opinion of the letter writer, not the opinion of the newspaper. To that extent, the letter writer and the newspaper are at arms-length: Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 70. I accept too that a juror reading the letter would be capable of exercising a critical judgment on it.

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69 It is submitted on behalf of the respondent that the complaint is extravagant and would "cause the juror to react sceptically, as ordinary people react to any lobby group making improbable claims". Reliance was placed by the respondent on the observations of McHugh JA in Attorney-General for New South Wales v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695 at 711 - 712. There McHugh JA said:

"… it is legitimate to take into account the effect on juries of coverage in the mass media of other sensational events. In Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (at 136) Wilson J reminded us that:

'… the growth both in range and intensity of mass media coverage in modern times carries with it a greater liability to transience in its hold on the public mind. What is news today is no longer news tomorrow.'

Regard must also be had to what Brennan, McGregor and Lockhart JJ said in Duff v The Queen (1979) 39 FLR 315 at 333; 28 ALR 663 at 677 in determining the effect of pre-trial publicity on a jury's verdict. Their Honours said:

'The possible effect on jurors of such articles must be assessed in the light of the times in which we live. We live in an age when television, motion pictures, radio and newspapers inform us of acts of violence and other notorious happenings within minutes of their occurrence in remote and proximate places. Some of the accounts are accurate and fair, others are not. It is wrong to assume that jurors do not have or will not exercise a critical judgment of what they see, read and hear in the media.'

Similar views have been expressed by United States courts: People v Brindell 185 NYS 533 (1921) at 535; Re Application of National Broadcasting Co Inc 653 F 2d 609 (1981) at 616. At least one recent study in the United States indicates that the effect on jurors of pre-trial publicity of prejudicial material is nowhere near as great as the common law tradition insists: Simon, 'Does the Court's Decision in Nebraska Press Association Fit the Research Evidence on the impact on Jurors of News Coverage?' (1978) 29 Stanford L Rev 515."

McHugh JA was speaking of contempt in circumstances of pre-trial publicity of prejudicial material and I am prepared to accept that jurors can read sceptically much material that relates to the criminal process generally when it is published in a pre-trial context. In the present case, the publication of the letter was on the morning of the closing days of the trial. A question arises as to whether this put the material into a different context.

In Kanaan v The Queen (supra) at [24] the Court said:

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"It has long been accepted that jurors are able to exercise a critical judgment of what they see, read and hear in the media, and to put such material out of their minds: Duff v R (1979) 28 ALR 663 at 677; AG v John Fairfax & Sons Ltd (985) 6 NSWLR 695 at 711; Hinch v AG (Vie) (1987) 164 CLR 15 at 74; R v George (1987) 29 A Crim R 380 at 395; R v Bell (BC9805451), CCA, 8 October 1998 at 4-7. It must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the directions given to them by the trial judge: Demirok v R (1977) 137 CLR 20 at 22; Hinch v Attorney-General (Victoria) at 74; R v Yuill (1993) 69 A Crim R 450 at 453. It is a frequently recognised phenomenon that any criminal trial, by its very nature, causes all involved in it to become progressively more inward looking, with the capacity to study the evidence given and the submissions made in the courtroom, to the exclusion of other sources of information: AG v News Group Newspapers Ltd [1987] QB 1 at 16; Gisborne Herald CoLtd v Solicitor-General [1995] 3 NZLR 563 at 569-570."

70 Accepting that jurors become more "inward looking" toward the end of a criminal trial, it seems unlikely that the opinions expressed in the letter would be likely to weigh heavily or at all with a reasonable juror listening to the directions of the trial Judge to avoid being influenced by matters read out of the courtroom.

The "balancing exercise"

71 The contemnors submit that whilst it is not necessary to have regard to the principles in Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 those principles are applicable to this case and constitute an additional reason why the publication did not amount to a contempt. It is submitted that the application of those principles requires a balancing exercise between the protection of the administration of justice and the vital importance of freedom of speech in a free society. Reference is made to R v West Australian Newspapers Ltd; Ex parte DPP (supra), where at 538 the Court said:

"We are left in no doubt that the publication of the articles by the first contemnor had, as a matter of practical reality, a real and definite tendency to prejudice the fair trial of Mr Connell. There can be no doubt as to the vital importance of freedom of speech in a free society, as to which see Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. However, it is not the only public interest in issue in this case. The matter comes down to a balancing of public interests, that is, on the one hand, the public interest in the integrity of the criminal law and in preserving public confidence in the fairness of criminal trials - as to which see Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 - and, on the other, freedom of speech and discussion of matters of

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public interest. In this regard it is to be stressed that the law of contempt does not exist to protect the private interests of an accused person, but to protect the public interest in the due administration of justice: see Attorney-General v Times Newspapers Ltd [1974] AC 273 at 301, per Lord Reid."

72 It is submitted by the contemnors that no juror could be persuaded by the argument of the letter writer: the opinions of Mr Robinson would be perceived by a juror reading them for what they are; namely, the opinions of "one person with an axe to grind".

Findings

73 The second paragraph of the letter draws attention to the fact that until 26 November 2005 the deceased was a "living breathing [person]" and the son, possibly a brother, grandson, nephew, cousin and a friend to various people.

74 I do not consider that this paragraph would lead the ordinary, reasonable juror to be prejudiced against Mr Becker in his trial. It must have been known to the jurors that the deceased was a son, relative, or friend to various people. No doubt, there would be a natural tendency toward sympathy for the relatives of the deceased, but such sympathy would be something that the trial Judge would direct the jury to ignore. The trial Judge would have impressed upon the jury the need to judge the case in a dispassionate and clinical way. The jury could be expected to follow and apply that direction.

75 In Webb v The Queen (1994) 181 CLR 41, the High Court considered that there could be no apprehension of a lack of impartiality of a juror who on the morning the trial Judge commenced his summing up gave a bunch of flowers to a person at the courthouse with a request that it be given to the deceased's mother. The accused in that case was on trial for the murder of the deceased. Although a case concerned with the likelihood of bias, or lack of impartiality on the part of the juror, it demonstrates the point that jurors can be relied on to take their oath seriously and listen to the directions of the trial Judge to the exclusion of other influences.

76 I do not consider that the fourth paragraph of the letter can be read properly without reference to what preceded it. As this cannot be done, the paragraph can only have the meaning that victims generally deserve more respect in courts and until there are changes in a system which favours the offender, there will be no justice.

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77 The general complaint that victims deserve more respect would, in my view, be unlikely to influence a reasonable juror to be prejudiced against the accused. The trial Judge would inform the jurors that in a criminal trial the question is whether the accused has been proved guilty of the offence alleged. The question of respect for the victim is not in issue. The tragedy of the death of the deceased would no doubt be referred to, but the jury would be told to avoid sympathy and to judge the case with detachment. I cannot see that the contents of the final paragraph of the letter would be such as to lead a reasonable juror to ignore that direction.

78 The suggestion that the system is weighted in favour of offenders, and therefore unjust, is in the same category. The trial Judge would direct the jury on the central questions of onus of proof, standard of proof and presumption of innocence. The direction would include reference to the fact that these rules do not confer upon an accused person any prejudice or benefit, but are the accused's right in a criminal trial. The jurors would be told to ignore anything they had read outside the case.

79 In my opinion, the reasonable juror could be expected to comply with these directions. Jurors can be taken to follow the trial Judge's directions and avoid prejudice to the accused: John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at [103].

Conclusion

80 For the reasons I have given, I am unable to conclude beyond reasonable doubt that a reasonable juror involved in the trial of Mr Becker on 11 December 2006 would have been affected by Mr Robinson's letter in that morning's The West Australian. In particular, I do not consider it to be proven beyond reasonable doubt that:

(a) There was a likelihood that members of the jury being conscious of their role as the arbiters of fact at the trial of the accused would have read the material and there was a danger that they may be influenced by it, to be sympathetic towards the victim and his family and thereby engender antipathy toward towards the accused.

(b) The publication was likely or calculated to have a tendency to prejudice, obstruct or interfere with the due administration of justice.

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81 I therefore consider that the motion for contempt should be dismissed.

82 It does need to be said, however, that it was unwise for the second contemnor to publish the letter in question on the morning of one of the final days of the trial of Mr Becker. Clearly, the second contemnor knew that the letter related to the trial of Mr Becker and knew that it was a trial in progress. The request of the staff member that the reference to the deceased's name be deleted establishes that fact.

83 The letter identified the trial of Mr Becker despite the fact that his name was not used. The identifying detail in the letter was sufficient to make it clear that it was his trial. Newspapers must appreciate that mere deletion of the name of the accused from a letter of this type is insufficient. A trial or an individual will often be identified without the name of the person on trial being given: see Western Australia v West Australian Newspapers Ltd (2005) 30 WAR 434 at [29].

84 R v Truth Newspapers (Unreported, VICSC, 4571 of 1993; 16 December 1993) shows how dangerous it can be for a newspaper to publish material commenting on a trial during the course of it. A lead article was published in TheTruth newspaper commenting on the trial of a man named Higgins. The trial had been in progress for 15 months and the article concentrated on the cost of it, describing it was one of the most expensive legal cases in Australian history. It had already cost $33,000,000. The position of the accused was dealt with at length. There was a comment on his adverse health and family breakdown. J D Phillips J reached the following conclusions (at 17):

"To engender sympathy for an accused or to disparage the prosecution is as much to interfere with the proper administration of justice in a particular case as is to prejudice the position of the accused: Consolidated Press Ltd v McCrae (1955) 93 CLR 325 at p 344; Miller on Contempt, 2nd Ed, pp 206-7; Borrie and Lowe, Law of Contempt, 2nd Ed, p 98; Davis v Ballie (1946) VLR 486 at p 498. Here, the effect of the article was to engender sympathy for the accused and that effect cannot lightly be dismissed. The article was published at a critical time in the trial, shortly before the jury was to retire to consider its verdict. The article was apt to bring home to them that the trial was one of the longest and certainly the most expensive in Victorian criminal history, that it had exacted its toll on the accused and that the accused had suffered in particular as described in the article. Such writings were prone to distract the jury from their task which was to consider guilt or innocence according to the evidence before them and by reference to nothing else. To write an article on the Higgins trial so near to its conclusion was a bold step to take, but to write it in such

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a way that it was apt to distract the jury was, I am satisfied, contempt of court."

85 In this case, the publication did not constitute a contempt of court, but it should be made clear that it is highly undesirable for a newspaper to publish during the course of a criminal trial letters to the editor which contain material relating to that trial.