Adjudication No. 134 (July 1982) [1982] APC 14

ADJUDICATION No. 134 (July 1982)

Mr Justice J. F. Fogarty, a judge of the Family Court, has complained to the Australian Press Council about an article published by the Sunday Telegraph on April 25 this year headed "Cops guard judges from 'hit man' threat".

The article said a massive security net had been thrown around four Family Court judges after a tip that a South American hit man was aiming to assassinate one of them. It gave some details of the security arrangements for Mr Justice Fogarty and quoted him saying he could not comment, commending the police and saying he expected major developments in the police inquiries in the next few days.

Mr Justice Fogarty complains that publication of the article at that time was irresponsible, contrary to the public interest and his safety at that time and that he should not have been quoted.

He says that both he and the Federal Police had warned the newspaper beforehand that publishing anything about the matter at that time could jeopardise the police investigation. Other newspapers knew of the investigation but were delaying publishing anything about it and the Sunday Telegraph had been informed of this. Mr Justice Fogarty says his comments to the newspaper were in the context of asking that nothing be published until the police investigation was over. Finally he says that, as a result of the article, the police investigation could not be carried through to a point which might have clarified the matter one way or the other. The result was unsatisfactory and police protection for him was having to continue.

The newspaper has replied that its editor considered it important for the public to know if members of the judiciary were under threat, and that although police had warned that publication could increase the risk to the judge and his family, they had not indicated an overriding need to suppress the news. The newspaper also says Mr Justice Fogarty did not say he was speaking off the record and its reporter did not agree to treat anything as confidential.

This is clearly a case of conflict between two important principles: the public's right to know and the need to delay publication in the public interest and in the interest of safety for the judge and his family.

The council considers that the newspaper, in deciding to publish when it did, did not give sufficient weight to the damage that the story could cause. The council considers that the detrimental effects of publishing the article were greater than the detrimental effects of delaying publication until the police had carried through their investigation.

The council appreciates that the Sunday Telegraph is a weekly newspaper and that delaying publication of the story would have left the way open for daily newspapers to publish it first during the week. But the council considers that the public interest in maintaining the secrecy of the police investigation in this case should have been paramount.

The council considers that the Sunday Telegraph was wrong in publishing the article when it did, thereby jeopardising the police investigation. The council is also satisfied that quoting the judge in the article constituted a breach of confidence. The complaint is upheld and the newspaper is censured.