Time Inc Magazine Co Pty Ltd & Anor v Att-Gen for NSW

[1995] HCATrans 24

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney           No S166 of 1994

B e t w e e n -

TIME INC MAGAZINE COMPANY PTY LIMITED

First Applicant

THOMAS MOORE

Second Applicant

and

ATTORNEY-GENERAL IN AND FOR THE
 STATE OF NEW SOUTH WALES

Respondent

Application for special leave
to appeal

MASON CJ
BRENNAN J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 FEBRUARY 1995, AT 10.08 AM

Copyright in the High Court of Australia

MR.I.D.F. CALLINAN, QC:   May it please the Court, I appear with my learned friend, MR S.J. GAGELER, for the applicants.  (instructed by Allen Allen & Hemsley)

MR K. MASON, QC, Solicitor-General for the State of New South Wales:   I appear with my learned friend, MR M.G. SEXTON, for the respondent.  (instructed by the Crown Solicitor for the State of New South Wales)

MASON CJ:   Mr Callinan.

MR CALLINAN:   Your Honours, the applicants were convicted by the Court of Appeal of contempt by publishing a photograph after the accused person, Milat, appeared in court, a photograph that was neither favourable nor unfavourable to either side.  Milat was charged with the murders which have been described as the “Backpack murders”.  It is common ground that at the time of the hearing there were only two known identity witnesses.  The court applied, it will be submitted, slavishly, we respectfully submit, the decision of In Re Auld overlooking, or disregarding, two very important streams of authority.

The first stream of authority is the more recent stream of authority in this Court, relating to the implied constitutional freedom of speech.  The other stream of authority is the very considerable body of authority in absolute privilege defence cases in defamation.  In those cases there are very, very many statements - we have set them out in our application book - by various courts to the effect that the media, in reporting court proceedings, is merely extending the rules of the court; that the media are the ears and eyes of the public.

Could we go to the first point and draw attention to pages 43 and 44 of the application book where his Honour the Chief Justice dealt with the constitutional matter.  Their Honours Mr Justice Cole and Mr Justice Sheller agreed with the Chief Justice.  At the foot of page 43 the Chief Justice said:

It was argued on behalf of the opponents that, if the relevant principles were as they have hitherto been supposed to be, they would contravene an implied right of freedom of communication or expression that is established by the Commonwealth Constitution.....The common law principles outlined above are themselves the result of a balancing of competing interests; the public interest in freedom of expression and the public interest in the administration of justice. Freedom of expression is not unconditional. Expression can, for legally relevant purposes, be free even though it is subject to other legitimate interests. As was pointed out by Justice Oliver Wendell Holmes, the right of free speech does not mean that a person can lawfully, for private amusement, go into a crowded theatre and call out: “Fire”.

If I pause there, I think it is right to say that that is the only passage in which the court below dealt with the matter of the constitutional right of freedom of speech.  In so doing, we would respectfully submit the court did not do what this Court has held must be done when these sorts of issues arise.  Your Honours, in that respect, we would draw attention to what your Honour the Chief Justice said in Cunliffe.  In Cunliffe ‑ ‑ ‑

MASON CJ:   That was a dissenting judgment.

MR CALLINAN: I understand that, but as I understand it, there was nothing said by the majority or by other members of the Court which would affect what your Honour said in that regard, that is the requirement, as we read it, for the balancing exercise. May I respectfully remind your Honour of the passage 124 ALR 133. Your Honour the Chief Justice, after discussing the earlier case, said:

This means that, in considering the question of infringement of the implied freedom, it is necessary to take an approach different from that applicable when considering the question of characterisation.  In that area, as discussed above, a certain margin is available to the legislature.  But, in construing an implication of freedom of communication, as with a guarantee of a fundamental right, the court must determine whether the burden or restriction on the freedom is reasonably appropriate and adapted to the relevant purpose and therefore impermissible.

Your Honour then went on to make similar sorts of observations.

MASON CJ:   Would it not be more to the point to ask the question whether the statement on page 44 that you have read out accords with the majority position in Theophanous? The implication here seems to be that of necessity, inevitably the common law principles will reflect whatever the implication in the Constitution demands, because the common law principles necessarily result in a balancing assessment.

MR CALLINAN:   That balancing assessment, as we understand it, has always been done in the past.  That is until the recent decisions of this Court, without reference in any way at all to what this Court has held to be the implication.  We would submit that no decision in this area, which does not take account of that matter but which simply looks to the common law and nothing else, is an incomplete decision.

MASON CJ:   That is the reason why I raise the question of the impact of Theophanous.  Because Theophanous, according to my recollection, did require the Court to look at the question whether the common law principles necessarily resulted in an assessment of the kind that the implication would call for.

MR CALLINAN:   Your Honours, with respect, that is undoubtedly correct, but we would submit that none of that can be done, as it were, in a constitutional vacuum.  That, in short, is our point here on this aspect of the matter.

BRENNAN J:   That, in short, is the dissenting view in Theophanous. 

MR CALLINAN:   It is a different context, of course.  In our respectful submission, it is in a different context, and the majority view to which I think your Honour the Chief Justice alluded - at page 19 of Theophanous, line 35:

It follows, in our view, that the court is not justified in concluding that the balance achieved by the common law in protecting the reputation -

BRENNAN J:   Mr Callinan, I think, perhaps, you are not quite seeing the point the Chief Justice has made.  That is that you are doing better under Theophanous than you will ever do under Nationwide News. 

MR CALLINAN:   Yes, your Honour.

BRENNAN J:   Do you wish to invoke the majority view in Theophanous in order to support the argument that whatever the common law might say, in relation to the photography of the person charged, the Constitution gives protection?

MR CALLINAN:   Yes, your Honour.  I was really only referring to your Honour the Chief Justice’s statement in the context to which I did, because I thought, with respect, it aptly picked up the matter of the balance ‑ ‑ ‑

MASON CJ:   I was rather getting ahead of you.  I mean, you were pointing to the need for balancing.  I was indicating that the passage that you direct attention to on page 44 recognised the balancing requirement, but seemed to imply that whatever the common law did necessarily resulted in the appropriate balance.  I was suggesting to you that Theophanous rather indicated that that was a mistaken approach.  So that, point one for you is that the Court of Appeal seemed to have made, on the face of it, an error on page 44.

MR CALLINAN:   Yes.  I think, perhaps, I have wrongly characterised the error.  I will adopt what your Honour the Chief Justice has said, because we did identify it as an error, but not in the way in which your Honour has, and we would respectfully adopt that.

MASON CJ:   I think there are a number of hurdles ahead of you, and I would have thought, myself, that you have got to direct attention to them.

MR CALLINAN:   Yes.

MASON CJ:   First of all, how do you manage to bring this within the constitutional implication?  After all, we are concerned here with an exercise of jurisdiction by a State court.

MR CALLINAN: Yes. We understood the references to the States and, for example, to the appeals from State courts, in that section of the Constitution which deals with the judiciary, as indicating that the implication may relate to the proceedings of State courts as well as Commonwealth courts. That certainly courts are an important part of government ‑ ‑ ‑

MASON CJ:   You would be right, I think, in concluding that that was my view, but I am not sure that it is a view shared by a majority of the Court.  It is certainly shared by some other members of the Court, but just how many, I am not sure of, in the authorities.  I would have to look at them closely.

MR CALLINAN:   But as I would understand it, your Honours, it has not been decided by a majority of members of this Court; that it is an issue that is still there to be decided, and we would submit it is obviously a very important issue.

MASON CJ:   Yes, I follow that.

MR CALLINAN:   It is, we would respectfully submit, a special leave point. 

MASON CJ:   What is the result, according to you, of applying the implication?  What principle would it yield in relation to publication of material of this kind?

MR CALLINAN:   That it would be perfectly permissible to publish anything that communicated - and for the purposes of this case I could say, without adverse impact or with little likelihood of adverse impact - anything that could be seen or happened in a court during the course of proceedings.

TOOHEY J:  Why do you isolate the court?  I know because that is the factual situation but are you not argument for a complete freedom of speech, or freedom of communication, whether or not the matters involved matters of government or otherwise?

MR CALLINAN:   I would, but I would submit that I would not have to for the purposes of this case.  But, yes, I would.  For the purposes of this case I am aided, I would submit, by the numerous statements which have been made by other courts at all times about the publication of a fair report or representation of what happens in court.

MASON CJ:   This did not happen in court.  I could understand your argument if the photograph happened to be a photograph of the individual in court, but it is not that, so I do not see how it is an extension of what happened in court.

MR CALLINAN:   Your Honour, with the greatest of respect, I hesitate to say this, but that is, we would suggest, an artificial narrowing of what may be presented with respect to court proceedings for this reason, that when a report is made of what happens in court, one does not hear, for example, on the radio or on television, a recording of what happened in court.  One does not see a video on television of what happened in court.  One gets a reproduction or somebody’s summary of what happened in court.  Simply because the photograph has not been taken in court, so long as it is not a photograph that produces an unfair result to either side, it is a further reproduction of something that can be seen in court.

MASON CJ:   On this view, the implication would impose no barrier at all, indeed, would require, would it not, if people wanted to do so, the television of proceedings in court.

MR CALLINAN:   It would not require it because as part of the balancing exercise ‑ ‑ ‑

MASON CJ:   But, the difficulty would be that you could not have a legislative requirement that prohibited the television of proceedings in court.

MR CALLINAN:   Not necessarily, your Honours, because it might be the respectable view that could be incorporated in legislation that the need for seemliness and for non‑intrusiveness was such,that the freedom, in that respect, on the balancing of the exercise, must yield to the exclusion from the court of the actual cameras.

TOOHEY J:   But your argument goes further than that.  Does not the freedom of communication for which you contend amount to a freedom that overrides interference with fair trial?

MR CALLINAN:   No, because we would submit that the - this is a photograph case and we do not, for the purposes of this application, look to anything except a photograph.  The publication of a neutral photograph of the accused person in no way, we would submit, affects the proceedings.

TOOHEY J:   Well, if it does not interfere with a fair trial, then maybe you do not even get near to the constitutional question.  If it does interfere with a fair trial, you get into the constitutional area on your argument, but that would seem to place the right to a fair trial below the freedom of communication.

MR CALLINAN:   We would respectfully submit that what your Honour puts to me assumes, and we say this with respect, wrongly, that the publication of the photograph will adversely affect the hearing of a fair trial.

TOOHEY J:   No, what I am saying is if does not, then how do you ever get to the constitutional question?

MR CALLINAN:   The Constitution operates to guarantee the right to publish the photograph, we would submit.

TOOHEY J:   Where it does not interfere with the right of the accused to a fair trial.

MR CALLINAN:   Yes, and we would submit here, it does not.  What the Court of Appeal did was simply look at the matter without reference to, we would submit, properly, to the constitutional aspects of the matter.

BRENNAN J:   Mr Callinan, can a member of the public sitting in a gallery see the picture as it appears here?  See a likeness of the accused in the same clarity as it appears in the picture?  Or do they see the back of his head?

MR CALLINAN:   Your Honour, with respect, he is led into court; he is led out of court; there is no restriction upon him turning and looking around.  It depends very much upon the architecture of the court, and that cannot be the test.

BRENNAN J:   I do not know that it cannot be, because court can keep control of its own proceedings.  If there is a problem with respect to identification and the fairness of the ensuing trial, one thing the court certainly can do is to isolate the accused from public gaze.

MR CALLINAN:   I am not aware of it having been done except for other purposes, on occasions so that witnesses will not be intimidated.

BRENNAN J:   That is one example of how the court does control its own physical environment.

MR CALLINAN:   Yes.  But it has never been suggested that part of that control involves in any way any concealment of the person of the accused in court.  Indeed, take the case in which, perhaps, the accused represents himself.  He may, in those circumstances, be one of the leading figures in the day to day operation of the court.   We would respectfully submit it cannot depend upon a matter of architecture.

Your Honours, could we also remind the Court that independently of the constitutional point, there is very, very long line of authority that says - and they are set out in the application book - the cases that say that the media are the eyes and ears of the court, and I draw your Honours’ attention to those statements in the context of defamation at pages 57 and 58 of the application book.

Might I say that point was extensively argued in the Court of Appeal below, but it is not referred to in the reasons for ‑ ‑ ‑

TOOHEY J:   When you put it that way, it is the same problem with the constitutional question.  Are you saying that somehow what would otherwise be contempt of court ceases to be because it emanates from a media publication?

MR CALLINAN:   No.  We would submit that ‑ ‑ ‑

TOOHEY J:   It seems to me, really, what the case is about is whether there is contempt of court in a sense of interference with the right to a fair trial.  If there was not, that is the end of it; and if there was, in a sense that is the end of it.

MR CALLINAN:   No, with respect, your Honour.  I would be repeating myself, but we would submit, not.  We would submit that there cannot be any contempt of court because there is no unfairness in the publication merely of a neutral photograph of the accused.

TOOHEY J:   I understand that argument, but it is not a constitutional argument.  It is to do with what constitutes interference with a fair trial.

MR CALLINAN:   Except it does not take into account, we would submit - and I do not want to overstate it by saying a presumption - but it does not take into account what is in the nature of a presumption, in favour of free publication, generally, unless there is some good reason in a balancing exercise, for example, to impose a burden upon the communication. 

Your Honours, we really relate it to the response I made to your Honour Justice Brennan.  We would submit that confidentiality, or concealment of the appearance of the accused person is a practical impossibility in any event.  He will be seen.  He will be seen by a number of people.  There is nothing to prevent people from going to the court, in a system of open justice and open courts.  That is a point that has been made in the United States on a number of occasions.  Confidentiality and anonymity are both impossible in a system of open courts.

Could we also say that there are significant difficulties in the formulation and the application of Auld’s case, in any event.  There are difficulties in the way of talking about a real and definite tendency, a real and definite possibility, and the like.  We would submit that the formulation is unsatisfactory and very difficult to apply.

MASON CJ:   But it is difficult to formulate a principle that does give very clear guidance in particular fact situations.

MR CALLINAN:   Although, with great respect, some of the statements that your Honour made - I do not know, with respect, whether your Honour stated them as a

final view, as it were - but some of the statements, we would respectfully submit that your Honour made in Hinch’s case, for example, would constitute a far more satisfactory formulation, such as a substantial risk of interference.  I think that is one of the expressions your Honour used in Hinch.  Real and definite statements of that kind without the juxtaposition of probability, possibility, real, definite tendency in the context of possibility - all of those matters are obviously matters of difficulty so far as application is concerned.

MASON CJ:   Mr Callinan, I see the red light is showing.

MR CALLINAN:   Yes, your Honour.

MASON CJ:   Thank you.

MR CALLINAN:   Your Honours, the balance of what we would say, I think, is set out in the application book.

MASON CJ:   The Court need not trouble you, Mr Solicitor.

The question whether the implication of freedom of communication discussed in this Court in Nationwide News Pty Ltd v Wills, Australian Capital Television Pty Ltd v The Commonwealth, Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian Newspapers Ltd extends to the publication of a photograph of an accused person taken outside the court is a question which might, in an appropriate case, warrant the grant of special leave.  But in this case, having regard to its particular facts, we are not persuaded that the proposed appeal enjoys sufficient prospects of success to justify the grant of special leave.  The application is therefore refused.

MR MASON:   I seek costs, Your Honour.

MASON CJ:   You do not oppose that, Mr Callinan?

MR CALLINAN:   No.

MASON CJ:   The application is refused with costs.

AT 10.34 AM THE MATTER WAS CONCLUDED