Waterhouse v Australian Broadcasting Corporation

[1986] HCA 64

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson and Dawson JJ.

ROBERT WILLIAM WATERHOUSE AND ANOTHER v. AUSTRALIAN BROADCASTING CORPORATION

7 November 1986

Decision

GIBBS C.J., WILSON AND DAWSON JJ.: In this case the learned primary judge, Young J., was required to exercise a discretionary judgment, balancing two principles of great importance - on the one hand, the need to ensure that an accused person should not be prejudiced in his trial, and on the other hand, the need to ensure that the public discussion of matters of public concern is not stifled. The task which he had to perform was not altogether easy in the circumstances of the present case. However, we are unable to agree with the submission of Mr Black that the learned primary judge fell into an error of principle in reaching his conclusion. In the forefront of Mr Black's argument was the submission that Young J. effectively regarded the lapse of time between the proposed publication and the date when the first applicant is likely to be tried by jury as conclusive in determining that there was no real and substantial risk of prejudice. Young J. did consider that the fact that the trial would not be likely to take place for at least nine months was an important factor in reaching his conclusion. However, he did not fail to consider all the relevant circumstances, of which the lapse of time was one properly to be taken into account. The question was one of degree and the Court of Appeal reached the same conclusion as did Young J. It would not be right to grant special leave to appeal merely to review such an exercise of discretion.

2. Another question raised by Mr Black should be mentioned, and that is whether it was wrong of Young J. to ignore the possible effect of the publication on the mind of the magistrate who is expected to hear the committal proceedings in the near future. It is important to note that with the exception of one part which deals with matters already known to the public, the proposed publication does not deal with the subject of the charge against the first applicant. It deals with matters which may be said to reflect on the character of that applicant, or to constitute similar fact evidence that would be inadmissible at the trial. In our opinion, a magistrate should have no difficulty in disregarding matters of that kind in deciding whether a prima facie case has been made out by the evidence before him, and we see no reason to disagree with the conclusion reached in the Supreme Court on this point.

3. We further consider that it has not been shown that the Supreme Court was incorrect in considering that there was no real and substantial risk of prejudice by reason of the possible effect of the publication on the minds of witnesses at the committal proceedings or at the trial.

4. No criminal proceedings are pending against the second applicant and any suggestion that he might be prejudiced in the pending civil suit would be entirely unfounded.

5. We have reached the conclusion that the case is not one in which it would be proper to grant special leave to appeal. We therefore refuse the application.

Orders

Special leave to appeal refused with costs.

Injunction dissolved.