AUSTRALIAN PRESS COUNCIL NEWS, MAY, 1989 5
Contem pt of court
an d the m edia
Peter Gillies writes about the suppression o f public com m ent in light o f the H ind i case.
he decision o f the High Court in
Hinch v A-G (Vic) and Macquarie
Broadcasting Holdings (Ltd) v AG(Vic) (1987) 164 CLR 15 deals with
the commission o f contempt at com­
m on law in one o f its several cate­
gories, viz. the publication o f material
in a situation where such publication
tends to prejudice the fairness o f par­
ticular legal proceedings. It can be
committed in relation to criminal and
c ivil proceedings.
As the High Court confirmed in this
case, the m atters w hich must be
proven are the same whether prejudice
t<o criminal or civil litigation is alleged.
C o n te m p t is o f course a crim inal
offence, although it is tried summarily,
ite. by a court sitting without a jury, in
which the judge decides both the ques­
tions o f law and those o f fact, including
tlhe ultimate one o f guilt.
In Hinch's case the conduct com­
plained o f was several broadcasts by
H inch and his employer, the second
dlefendant, in which prejudice was
ailleged to have been caused in relation
no the prospective trial o f a person
charged with certain criminal offences.
W hat the case confirms is that discus­
sion by the media or for that matter
piublic comment by other persons, in
terms potentially influential in relation
tio the outcome o f litigation involving
t;hem, needs to be conducted with
gp~eat caution.
TTHE FACTS
Broadly, the facts in the case were
tlhat one Father Michael Glennon, who
hiad been ordained as a Catholic priest,
was charged on 12 November, 1985
w ith certain sexual offences against
y/oung male persons. He was remanded
tco appear on bail at a later date. At the
tiime, Glennon was in charge o f the
Peaceful Hand Youth Foundation Pty
L td , an organisation which conducted
children's camps and other activities
fcor children.
The next day following the charging
o )f Glennon, the broadcaster Derryn
PHOTO COURTESY SYDNEY M O RNING HERALD
T
Derryn Hinch
Hinch made a broadcast on Radio
Station 3AW, Melbourne, which was
owned and operated by Macquarie
Broadcasting Holdings Ltd, in which
he referred to the fact that Glennon
had been ch arged with o ffe n c e s
against teenage boys. H e referred to
Glennon's position as director o f the
Foundation, and among other things
noted that the offences charged had
allegedly been com m itted between
1975 and 1982 at the Foundation's
camp at Lancefield.
Hinch stated that G len non had
been "forced to resign from practising
within the Catholic Church after he
was charged with sexual assault and
ja ile d in 1978". H e also said that
Glennon had been charged with rape
in 1978 and that when he pleaded
guity to indecent assault o f a 16 year
old girl, the police had not proceeded
with the rape charge. Hinch observed
that Glennon had been sentenced to
two years imprisonment on the charge
to which he pleaded guilty, and that he
was later acquitted on two counts o f
rape involving a 12 year old boy.
At the end o f his comments Hinch
raised the question o f how it was that
G lennon had continued to run the
F ou n dation having rega rd to his
responsibility to take children into his
care, when he had a sexual
criminal record involving juveniles.
Hinch made a second broadcast on
the case the following day, repeating
the gist o f the previous day's comments
and observing that the Foundation's
secretary had confirmed that Glennon
would be remaining in his position.
"That is, despite a ja il sentence for
indecent assault, the man will stay in
that position", Hinch said. H e again
queried this as being anomalous.
On 17 February, 1986 the Victorian
Attorney-General filed a motion alleg­
in g that H in ch and M acqu arie
B roadcasting had com m itted co n ­
tempt. The motion was adjourned.
Th en on 7 March, G lennon was
charged with two counts o f indecent
assault o f a female and one o f rape and
was bailed to appear at a later date.
T h e offen ces were alleged to have
b een co m m itted in 1982. O n 11
March, Hinch made a third broadcast
in which he again referred to the mat­
ters previously raised by him and to the
latest charges and repeated the ques­
6 AUSTRALIAN PRESS COUNCIL NEWS,
r, 1989
tion previously asked by him.
The Attorney-General filed a second
motion against the defendants, alleg­
ing a contem pt in the form o f this
broadcast. The motions were heard by
Murphy J in the Supreme Court o f
V ictoria. H e found the defendants
guilty o f the contempts charged and
im posed fines totalling $55,000 on
Macquarie and $25,000 on Hinch. As
well, Hinch was sentenced to 42 days
imprisonment. On appeal to the Full
Court, the verdicts were confirm ed,
but the sentence o f imprisonment was
reduced to 28 days, and the fines were
reduced in each case by $10,000.
Each party then appealed to the
H igh Court. Th e core issue in each
appeal was the elem ent o f criminal
contempt. The comments on this mat­
ter in the leading case o f Ex part e
Bread Manufacturers Ltd; Re Truth &
Sportsman Ltd (1937) 37 SR(NSW) 242
per Jordan CJ were put directly in
issue.
SCOPE OF THE OFFENCE
T h e five H ig h C ou rt Justices
involved in the appeal held that the
comments by Jordan CJ in the New
South Wales case o f Re Truth and
Sportsman Ltd in describing the ele­
ments o f the offence in the context o f
publication concerning a prospective
or current civil trial, applied equally to
the publication o f comments concern­
ing a criminal trial.
The central passage in Re Truth is at
pp249-50. In it, C hief Justice Jordan
noted that it is o f extreme public inter­
est that no conduct should be permit­
ted which is likely to prevent a litigant
in a court from having his case tried
free o f prejudice (such as could arise
from the publication o f certain com­
ment on the case). But, he noted, the
due administration o f justice is not the
only matter in which the public is vital­
ly interested; and if in the course o f
ventilation o f a question o f public con­
cern, matter is published which may
prejudice a party in the conduct o f a
lawsuit, it does not follow that a con­
tempt has been committed.
It is well settled that a person cannot
be prevented by a process o f contempt
from continuing to discuss publicly a
matter which may fairly be regarded as
being o f public interest merely because
the matter in question has become the
subject o f litigation or that a person
whose conduct is being publicly criti­
cised has become a party to litigation.
What Jordan CJ envisaged would have
to be done in such a case where con­
tempt was alleged, was to balance the
public interest in the due administra­
tion o f justice with the public interest
in free speech and in particular the dis­
cussion o f issues o f public interest.
Where the first interest was the more
weighty in the particular case and the
elements o f contempt had otherwise
been established, then the publisher
(including the person responsible for
the comment) would prima facie be
guilty o f contempt.
In the Hinch-Macquarie case, the trial
ju d g e and the two appellate courts
were o f the view that the contempt had
been proven, viz. that the elements o f
“What was objectionable
in the broadcasts?
A primary complaint
according to the courts
was that Hinch had
disclosed that Glennon
had a prior conviction o f
a serious nature (for
factors as the nature and extent o f tie
publication, the mode o f trial (whether
by judge or jury), and the time which
will elapse between publication and
trial (where the comment is prior to
and not during the trial). Judges are
properly viewed as having a relati/e
immunity from being unduly influ­
enced by intrusive commentary bear­
ing upon litigation, while lay jurors
may be more readily given to conse­
quential prejudice.
The accused need not have a literal
intention to interfere im properly in
the administration o f justice, although
certainly the act complained o f (tke
pu blication) must be intentionally
committed. It follows that absence of
an intention improperly to deflect the
course o f justice will not in itself save
the accused from conviction where the
other elements o f contempt are pre­
sent.
Th e time for assessing whether a
contempt has been committed is the
time o f publication, not some later
time, ie. a publication which is not con­
temptuous does not becom e a con­
tempt merely because o f later develop­
ments.
sexual assault) ”
contempt were established beyond rea­
sonable doubt (the criminal standard
o f p ro o f must be satisfied, contempt
being a crime), and that in particular,
this
balan cin g
process
was
unfavourable to the appellants (the
original defendants).
What are the elements o f contempt
in this context then, and why was the
balancing process unfavourable to the
defendants?
T h e pu blish ed m atter must, as
Mason CJ suggested in the High Court
be such as to create a "real risk" o f
interference with the due course o f jus­
tice in the particular case which the
com m ent relates to: the com m ent
must "as a matter o f practical reality",
have "a tendency to interfere with the
due course o f justice in a particular
case". Not just any trifling interference,
then, with no real potential for mis­
chief, will suffice for proving contempt
beyond reasonable doubt.
Further, the ba la n cin g process
referred to must be decisively against
the accused person (remembering that
the onus o f p roo f is on the prosecu­
tion, and it must prove all, not just
some o f the elements o f the offence
beyond reasonable doubt). In deter­
mining whether in a case like Hinch
the balancing process favoured the
comments in question, or was hostile
to them, regard is to be had to such
APPLYING THE LAW TO
THE FACTS IN HINCH
In the Hinch case, as mentioned, the
trial judge and the two appellate courts
found against the defendants. What
was decisive was the perceived out­
come o f the balancing process referred
to. W hat was ob jection able in the
broadcasts? A p rim ary com p lain t
according to the courts was that Hinch
had disclosed that G lennon had a
prior conviction o f a serious nature
(for sexual assault). It is a basic rule o f
ev id e n ce that in a crim in al (and
indeed a civil) trial, that evidence o f
the past commission o f crimes by a per­
son accused at trial o f another crime
(o r a civil w ro n g ), cannot be put
before the court.
So, to illustrate, i f a person is
charged with committing a robbery in
1989, it is improper to prove that he
committed robbery in 1987, 1985 or
1983. Clearly, this evidence is relevant
- if a person has a history, say, o f com­
mitting robbery, it is more likely that
he com m itted the robbery charged
than it would be if he had no such his­
tory. T h e evidence shows crim inal
propensity, and o f even m ore rele­
vance, propensity to commit a crime o f
the very type charged.
However, except in the most unusu­
al cases, the law will not allow this type
o f evidence to be led. The reason is
AUSTRALIAN PRESS COUNCIL NEWS, MAY, 1989 7
that the prejudice which it would cre­
ate in the minds o f a jury (or even a
judge or magistrate trying the charge
summarily) is so great that it would
make the trial o f the charge unfair.
There would be a real risk that a jury
might convict the accused not because
o f the strength o f the evidence relating
solely to the charge presently before
the court, but because o f the past
crimes of the accused.
The revelation by Hinch, therefore,
was potentially prejudicial - the broad­
cast was to many thousands o f people
in the city from which a jury would be
drawn, assuming the charges against
Glennon went to trial. The likelihood
is that one at least o f the jurors would
remember the broadcast and commu­
nicate the fact o f Glennon's past con­
viction for sexual assault to the others.
Another factor adverse to the defen­
dants, was, as certain justices saw it,
Hinch's insinuation that the priest was
indeed guilty o f the fresh (and yet to
be tried) charges. TooheyJ saw this as
the factor principally adverse to the
defendants. It is self-evidently a matter
prejudicial to a person facin g the
prospect o f trial, that observations as to
his guilt are being published to poten­
tial jurors or for that matter, jurors cur­
rently trying his case.
On the other side o f the ledger, the
factor favourable to the defendants in
balancing the competing public inter­
ests referred to, was what the defen­
dants identified as the public interest
in disclosing the fact that the director
o f a youth community organisation
had not only been recently charged
with sexual assaults against juveniles
but that he had been convicted o f a
sexual assault on a young girl.
In the view o f the court, however,
the public interest in preventing preju­
dice to the priest's prospects o f a fair
trial on the outstanding charges, out­
weighed the public interest in broad­
casting the matters o f his personal histo ry id e n tifie d by H in ch . It was
undoubtedly a matter o f influence with
the several courts that dealt with the
matter, that Hinch could have con­
fined his comments to observing that
G len n on was d ire c to r o f the
Foundation and that he had recently
been charged with sexual offences
against ju ven iles — observations
which could not have amounted to
contempt. The appellants' contention
that this might not have been enough
to alert the public (in particular the
parents o f children involved in the
Foundation) to the inappropriateness
o f Glennon continuing in the position
w hile the charges were outstanding,
was rejected by the court (see in partic­
ular TooheyJ's comments at p.75). It is
relevant then to look at the means
available to a person contemplating a
publication o f potentially prejudicial
matter: is there something short o f the
publication o f what is prima facie con­
tem ptuous m aterial, which can be
done to serve the public interest they
are concerned to promote?
reasons mentioned earlier: that is, the
presumed superior ability o f an experi­
enced judicial officer to put out o f
mind prejudicial matter generated out
o f court.
•
CONCLUSION
An in tern ation al con feren ce on
press councils and press regulatory
bodies is to be held in Kuala Lumpur
between 18-20 November, 1989.
Organised by the World Federation
o f UNESCO Clubs and Associations,
the c o n fe re n c e has as its them e
'Freedom o f the Press and the Role o f
Press Councils'. Representatives o f the
Australian media are invited to attend
the conference as observers, and the
Federation will provide meals and con­
ference materials to observers without
charge during the conference.
No conference fees are charged to
observers.
The tenor o f the High Court's judg­
ment in this case (or more strictly, the
five unanimous judgm ents) is over-
“Hinch could have confined
his comments to observing
that Glennon was director of
the Foundation and that he
had recendy been charged
with sexual offences against
juveniles”
w helm ingly favourable to what was
seen as the fundamental right o f the
citizen to a fair trial o f an allegation
against him or her by the suppression
o f public comment creating a real risk
o f prejudice to this right. Where trials
o f serious criminal charges are con­
cerned, it is apparent that the compet­
ing public interest in free speech and
the free ventilation o f public-interest
issues will uncommonly justify publica­
tions which prima facie are contemptu­
ous. Illustrations o f publications which
would (or might) not amount to con­
tempt through application o f this bal­
ancing process, given in Hinch, con­
firm this conclusion.
It is worth noting that the H inch
case dealt with a publication bearing
upon a prospective criminal trial or tri­
als. The courts have always been excep­
tionally meticulous in safeguarding the
right o f the accused to a fair trial o f the
criminal charge against him or her; in
comparison, the conduct o f civil pro­
ceedings is relatively more relaxed for
the very good reason that the liberty o f
the citizen and his or her reputation
are not at stake (or in so far as reputa­
tion is concern ed, not as much at
stake).
A further relevant factor (one apply­
ing particularly to civil proceedings,
where jury trial is less common than in
criminal cases) is, as noted in Hinch,
the form o f the trial itself. Comment
relating to a matter which is to be tried
summarily will more readily "balance"
in favour o f the commentator for the
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