Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 152 (3 March 2008)

Last Updated: 13 March 2008

NEW SOUTH WALES SUPREME COURT

CITATION:
Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 152
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION:


FILE NUMBER(S):
2007/12151

HEARING DATE(S):
31/01/2008

JUDGMENT DATE:
3 March 2008

PARTIES:
Director of Public Prosecutions (Cth) v Elisabeth Sexton and John Fairfax Publications Pty Ltd

JUDGMENT OF:
Howie J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
P Roberts SC - Plaintiff
J R Sackar QC with P Sibtain - 1st and 2nd Defendants

SOLICITORS:
Director of Public Prosecutions (Cth) - Plaintiff
Freehills Solicitors - 1st and 2nd Defendants


CATCHWORDS:
Contempt - criminal contempt - media - publication of material about accused standing trial - allegation that accused attempted to "derail" trial by appealing to Court of Criminal Appeal - jury discharged - whether publication amounted to contempt - whether journalist named in byline the author - relevance of effect of publication on trial.

LEGISLATION CITED:
Crimes Act 1914 - s 39
Criminal Appeal Act 1912 (NSW) - s 5F

CATEGORY:
Principal judgment

CASES CITED:
Ex parte Bread Manufacturers; Re Truth and Sportsman Ltd [1937] NSWStRp 22; 37 SR (NSW) 242
The Queen v Nationwide News Pty Ltd (unreported, 22 December 1997)
Registrar of Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, 21 April 1993, unreported)
Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650
Hinch v Attorney General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Attorney General (NSW) v Dean (1990) 20 NSWLR 650
Giorgianni v The Queen (1985) 156 CLR 473R v David Syme & Co Ltd [1982] VicRp 16; [1982] VR 173
R v Pacini [1956] VicLawRp 84; [1956] VLR 544
Attorney General (NSW) v X [2000] NSWCA 199, (2000) NSWLR 653
Kanaan v R [2006] NSWCCA 109

TEXTS CITED:


DECISION:
The Summons is dismissed.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

HOWIE J

MONDAY 3 MARCH 2008

2007/12151 DIRECTOR OF PUBLIC PROSECUTIONS

(CTH) v ELISABETH SEXTON

JUDGMENT

1 HIS HONOUR: These are proceedings by Summons for contempt of court brought by the Director of Public Prosecutions (Cth) against the publisher of the Sydney Morning Herald and Elisabeth Sexton, a journalist with that newspaper. The contempt alleged is that the publication in the newspaper of an article authored by the journalist had a tendency to interfere with the administration of justice in respect of a criminal trial taking place in the District Court at the date of the publication. There are two main issues raised before me: did the journalist author the article and did the article amount to a contempt of court? If I found that the article was capable of amounting to a contempt, the publisher and the journalist sought to rely upon a defence of public interest in publishing the article, see Ex parte Bread Manufacturers; Re Truth and Sportsman Ltd [1937] NSWStRp 22; 37 SR(NSW) 242.

The background

2 James Selim was committed for trial to the District Court on a charge alleging an offence contrary to s 39 of the Crimes Act 1914 (Cth) to the effect that he had procured another person to destroy or damage certain documents of a company named Pan Pharmaceuticals to prevent those documents being used in evidence in proceedings before the Federal Court. The allegation was that Mr Selim had sought to frustrate civil proceedings in relation to a product, Travacalm, manufactured by Pan Pharmaceutical by seeking to have computer records of the company destroyed or damaged.

3 On 13 March 2006 a trial commenced before Judge Geraghty with a jury being empanelled to determine the charge. The trial proceeded until 6 April 2006 when the jury were discharged for a reason that is not presently relevant.

4 On 6 November 2006 the accused was retried before Judge Sorby and a jury. He was arraigned on an indictment containing the following charges:

On or about 30 January 2003 at Sydney in the State of New South Wales, knowing that Pan Pharmaceuticals Limited’s data for the testing of a travel sickness medication known as Travacalm may be required in a judicial proceeding, did procure the conduct of another person, namely Karl Brooks, to intentionally destroy or render the said data illegible or undecipherable or incapable of identification with intent thereby to prevent it from being used in evidence

and in the alternative that

On or about 30 January 2003 at Sydney in the State of New South Wales, knowing that Pan Pharmaceuticals Limited’s data for the testing of a travel sickness medication known as Travacalm may be required in a judicial proceeding, did procure the conduct of another person, namely Karl Brooks, to attempt to destroy or render the said data illegible or undecipherable or incapable of identification with intent thereby to prevent it from being used in evidence.

5 Mr Selim pleaded not guilty to both charges and a jury was empanelled. The jury was excused for the rest of the day to permit a voir dire hearing to take place. The jury was not required the next day because of legal argument.

6 On 8 November defence counsel made an application to the trial judge challenging the validity of the indictment. That application was not successful. The jury were brought into court on 9 November and the Crown commenced calling evidence.

7 Mr Selim then sought leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) to the Court of Criminal Appeal challenging the decision of Judge Sorby. The application was heard on 10 November and refused. The Court did not publish its judgment on the Court’s website, this being the practice when a trial, to which the application relates, is pending or proceeding. This course is obviously followed to minimise the risk of a juror or potential juror learning of pre-trial proceedings taken by an accused person because of their possible prejudicial nature.

8 The trial before Judge Sorby and the jury continued.

9 On 20 November the following article was published in the Sydney Morning Herald on page 20, being the second page in the section entitled “Business”:

Pan damages case still two years away from a hearing

Elisabeth Sexton.................

The $400 million damages case against Pan Pharmaceuticals founder Jim Selim is unlikely to be heard until late 2008, with pre-trial hearings in the Federal Court this month disclosing a documentary mountain to be examined before the case starts.

Last week Justice Arthur Emmett ordered Pan's liquidator, Tony McGrath of McGrath Nicol, to provide Mr Selim with an index to 1326 boxes of documents held in external storage.

By the end of January Mr McGrath must also give Mr Selim more detail on the contents of a further 1045 boxes which have already been indexed.

Mr McGrath has until May 2007 to serve the written evidence he will rely on for his claim that Mr Selim breached his duties as a director by failing to ensure Pan kept its licence to manufacture vitamin and herbal products.

The April 2003 decision by the medicines regulator to close Pan's factory prompted Australia's largest consumer recall.

In his defence filed on November 2004, Mr Selim said that as Pan's chief executive he was entitled to rely on others to alert him to any deficiencies in quality control.

The defence also argued that the Therapeutic Goods Administration had wrongly suspended Pan’s licence after the regulator discovered dangerous overdoses of active ingredients in a travel sickness product.

Mr Selim had cross-claimed against the TGA, which has applied to the court for the cross-claimed to be struck out. That application will be heard next month.

Mr McGrath has told Pan's creditors, collectively owed $194 million, that he estimates Mr Selim has assets of $50 million which the court could order him to pay as damages.

A successful suit with this outcome would return creditors 52c for every dollar owed, compared with 22c if the case is lost and creditors bear the court costs.

Mr Selim has also faced long delays in two sets of criminal proceedings relating to Pan's closure. Last week he failed in a bid to derail his District Court retrial on charges of tampering with evidence relating to the travel sickness product.

The Court of Criminal Appeal dismissed his claim of procedural irregularity in the TGA’s case, which is being retried after the late withdrawal of a juror at the initial trial in March.

Mr Selim is also waiting a decision on whether he will be committed to trial on charges laid by the Australian Securities and Investments Commission.

Mr Selim has vigorously denied any wrongdoing in relation to Pan's collapse.

10 On the 10th day of the trial, 21 November 2006, an application was made to the trial judge by defence counsel for a discharge of the jury by reason of the publication of the article. The trial judge as well as counsel for the defence were particularly concerned by the use of the word “derail” in the article and the implication that in some way the accused had acted improperly in relation to the proceedings in the District Court. The Crown, having taken time to reflect on the matter, did not oppose the application. The jury were then discharged.

11 As a matter of history it should be noted that eventually Mr Selim was tried in the Supreme Court and acquitted by direction of the trial judge.

The charge

12 The statement of charge is set out in the Summons as follows:

It is alleged that each of the First and Second Respondents is guilty of contempt of court in that on 20 November 2006 the Second Respondent did publish in the Sydney Morning Herald, and article authored by the First Respondent, such article having a real and practical tendency to interfere with the administration of justice by prejudicing the fair trial of James Selim, then being conducted before the District Court of New South Wales sitting in Sydney.

Particulars are then set out giving the history of the proceedings to the effect as set out above.

13 It was clear both from the particulars and from what the prosecutor submitted during the hearing before me that the substance of the complaint is contained in the last four paragraphs of the article referring to the criminal proceedings against Mr Selim. In particular the prosecutor stressed the use of the word “derailed”, in the context of the allegation against Mr Selim set out in the charges before the District Court that he attempted to interfere with civil proceedings in the Federal Court, and the fact that the article revealed proceedings in the Court of Criminal Appeal that were irrelevant to the jury’s consideration of the allegations before them.

Authorship of the article

14 The first issue to be answered is whether the journalist was the author of the article, particularly of the last four paragraphs including the word “derail” which was described by the prosecutor before me as containing the “sting” in the article. There is no issue that there is a person named Elisabeth Sexton who is a journalist with the newspaper.

15 On behalf of the journalist Mr Sackar QC submitted that I could not be satisfied beyond reasonable doubt that she had been responsible for the whole of the article and thus guilty of any contempt as an accessory to its publication. There was no evidence before me from the journalist or any other person connected with the newspaper or its publication. However it was submitted that I could not act upon the attribution on the face of the article to the journalist as its author and that the byline did not give rise to any inference that the journalist accepted responsibility for the contents of the article. It was submitted in effect that the Court should accept that there were persons, such as a sub-editor, who were entitled to, and did, alter articles submitted for publication by at least changing particular words or inserting and deleting words, even though the article was under the byline of a particular journalist.

16 I am not prepared to take judicial notice of the role played by employees of the publisher in the preparation of the contents of newspapers. In particular I am not prepared to accept without evidence that there are persons in the employment of the publisher who do “interfere” with the contents of an article to which there is attached a byline. Frankly I know little or nothing of the role of a sub-editor in the preparation of the contents of a newspaper. I can accept that there may be a need for some alteration to the length of an article submitted for publication in order that it can be accommodated within the available space in light of advertising, material submitted by columnists and other articles that may be thought to be more newsworthy. But I know nothing of how that alteration is carried out or any of the mechanics by which the final set out of the paper is achieved.

17 Perusing this edition of the newspaper it can be ascertained that there are articles without any byline, those with a single name at the top of the article, some with two names, some with a name and a title such as “National Security Editor” and “Higher Education Reporter” and others with a name and a location, such as “in London”. It seems to me that, having regard to the nature of this particular newspaper, it is intended by the publisher that the reader should attribute the whole of an article to the journalist whose name appears in the byline, otherwise I do not understand what the byline is suppose to signify. Similarly I should infer that it is significant to a journalist that his or her name appears over a published article by way of indicating that the journalist authored the article and is responsible for its contents.

18 I appreciate that the newspaper is not the journalist’s document and therefore I cannot use her name appearing over the article as some form of admission by conduct. But I can infer that as a journalist for the newspaper she understands the way that articles in the newspaper are published and that she knew and intended that the article would be published under her byline. It seems to me that the overwhelming inference to be drawn from the appearance of the byline in the context of the newspaper as a whole is that the person named in the byline is the author of what follows and the person responsible for its contents. This is so whether or not some other person within the paper’s organisation also had responsibility for what was published, at least so far as the internal management of the newspaper is concerned.

19 The prosecutor sought to rely upon a judgment of Gillard J in the Supreme Court of Victoria in The Queen v Nationwide News Pty Ltd (unreported, 22 December 1997). In that case the article in question appeared under a photograph and a byline of the journalist against whom contempt proceedings were brought. Gillard J concluded beyond reasonable doubt that the journalist was the author and responsible for the article. This was a question of fact for his Honour and of course does not bind me. However, Mr Sackar submitted that the case before Gillard J was different from the present because the whole of the article was a contempt whereas here only the last four paragraphs are relied upon by the prosecutor and considerable weight has been given by him to the use of the word “derail”.

20 Mr Sackar relied upon the judgment of Mahoney JA in Registrar of Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, 21 April 1993, unreported) where his Honour considered the liability of reporters for contempts arising from the publication of a newspaper. With respect I can find little of assistance in the passage to which I had been referred. It concerned the basis upon which a reporter might be held liable notwithstanding that the reporter did not actually publish the material that is said to give rise to the contempt. His Honour wrote:

“The reporter does not ordinarily do those physical acts which are the publication of the article to the public. Her role will be to prepare the material which is to be published. Her liability will therefore ordinarily be secondary, that of an accessory or person knowingly concerned in that which constitutes the offence, the publication of the article. There may be circumstances in which the reporter's liability goes beyond this. The reporter may be actually concerned in the publication of the article or, whilst not concerned in the physical acts constituting publication, may in the relevant sense cause the publication to take place. In such cases, the reporter may, to adapt language more appropriate to other offences, be liable in the first degree rather than as a party in the second degree.

If the liability of the reporter is not for publication as such or causing publication but arises only from the assistance given to the publication, it will be necessary to determine whether what the reporter did had such a connection to the ultimate publication as constituted an offence. This will require consideration of the kinds of questions arising in other cases in which liability of a secondary kind has been considered. This may be illustrated by reference to the facts of the present case. The vice of the action of Fairfax lay not in the publication of the article alone; it lay in the publication of it at a time and in circumstances such that the publication was apt to prejudice the fairness of the trial. If the reporter wrote an article for publication but did so upon the basis that it would not be published at a time or in circumstances when the publication would prejudice the relevant trial, then ordinarily the reporter would not be accessory to the criminal publication of it. On the other hand, if the reporter knew the article was for publication and was to be published during the trial when prejudice would be apt to result, then her actions would ordinarily be sufficiently accessory to the ultimate publication as to involve criminal liability.”

21 The passage stresses that the liability of the reporter will generally, as here, be based upon the principles of accessorial liability and, therefore, it does not necessarily follow that because the publication is a contempt that the reporter is guilty of the offence. But it says nothing about whether I can draw an inference, beyond reasonable doubt, that the journalist was the author of the article and hence the prosecution can establish that she was an accessory to the publisher.

22 I note in passing that there was no issue raised before me as to whether, even if she were the author, the journalist had a sufficient mental state about the publication to make her liable as an accessory. Contempt is a strict liability offence in that, while the publication of the article must be intentional, it does not have to be published with the intention of interfering with judicial proceedings, see Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Hinch v Attorney General (Vic) [1987] HCA 56; (1987) 164 CLR 15; Attorney General (NSW) v Dean (1990) 20 NSWLR 650. For a person to be guilty as an accessory before the fact to a strict liability offence, the person accused must be shown to have known all the facts that would make the principal guilty of the offence: see Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473. If, as appears to be the case, the author’s liability for the publication is based upon being an accessory, then it would seem that the prosecution has to prove more than the fact that journalist was the author of the article. The prosecutor should have to prove that the journalist knew that the article would, when it was published, have the necessary tendency. In the present case, because of the contents of the article, the prosecution may have been able to prove that knowledge, but the issue was not ventilated before me.

23 I am satisfied beyond reasonable doubt that the journalist was the author of the article including the last four paragraphs and the use of the word “derail”. As such she was liable as an accessory before the fact to the publication. It is clear from the contents of the article that she intended that it would be published at a time when Mr Selim was being retried on charges of “tampering with evidence” after a previous jury had been discharged.

Relevant factual considerations

(a) The jury were discharged
24 There was some argument before me as to what evidence the Court could take into account in order to determine whether the article was a contempt. The prosecutor sought to rely upon, not only the wording of the article and the time of its publication, but also the consequences of the publication. In particular the prosecutor submitted that I could take into account both the fact that the trial judge had discharged the jury as a result of the publication and the fact that Crown counsel at the trial did not oppose the discharge together with the reasons why he thought it was an appropriate course for the judge to take.

25 It is clear that it is the tendency of the article published to interfere with judicial proceedings that is at the heart of the charge of contempt and it does not matter, so far as the issue of liability is concerned, whether it does actually interfere with proceedings or not. It is also well established that a determination as to whether the article has the necessary tendency must be made by considering the nature of the article in the context of the circumstances that exist at the time of publication. For example, it will clearly be a relevant factor to be considered whether the proceedings are merely pending or whether they are actually being heard at the time of the publication.

26 The prosecutor relied upon a statement by Hope JA in Willesee as support for the proposition that the consequences to the administration of justice of the publication is relevant in determining whether the article published was a contempt. The statement is a passing comment made early in his Honour’s judgment shortly after setting out the statement of charge and the particulars and before stating the facts. The alleged contempt was the contents of a television programme that contained allegations of serious criminal conduct against a man named Anderson who was then standing trial for a charge of theft in the District Court before Judge Matthews and a jury. Hope JA stated at 663E:

“................That the programme was likely and had a tendency to interfere with the administration of justice in relation to the fair trial of Anderson is illustrated, although of course not proved, by the circumstance that it led to the discharge by Mathews DCJ of the jury trying Anderson on the morning after the televising of the programme............”

27 In the judgment of Kirby P (as he then was) at 656G the following was stated:

“It is not sufficient to establish an interference with the administration of justice at large. It must be shown that, as a matter of practical reality, there is a tendency to interfere with the due course of justice of a particular case. The fact that a trial judge has considered that a contempt has occurred (or has not occurred), warranting termination or continuance of a trial upon which matter has been published, is not determinative of the charge of contempt: see R v David Syme & Co Ltd [1982] VicRp 16; [1982] VR 173 at 176. That question must be

determined by the court hearing the charge.”

28 In R v David Syme & Co Ltd [1982] VicRp 16; [1982] VR 173 at 176 the only reference to the fact that the jury was discharged was the following statement made during the course of giving the facts of the matter:

“When the trial resumed on the morning of the publication the learned trial judge, not surprisingly, was confronted by applications on behalf of all the accused for the discharge of the jury. His Honour refused the applications, but in doing so made it clear that he regarded the question whether a contempt of court had been committed as quite distinct from the question whether the jury should be discharged.”

29 However later in the judgment at 177, Marks J sets out a number of propositions which he deduced from the relevant authorities and which he intended to apply, one of which was as follows:

“(4) The tendency of the publication must be judged as the time of publication and is not determined by the fact that for some reason no harm has resulted.”

His Honour cited R v Pacini [1956] VicLawRp 84; [1956] VLR 544 as the support for this proposition. It is stated in the judgment of Lowe J in that decision in exaclty the same terms at 547.

30 Later in his judgment in Willesee at 657B Kirby P stated a number of “critical questions” that fell to be answered. The first was:

“Has the prosecutor proved facts which establish an interference with the due administration of justice?”

A little later he answers that question as follows:

“In the present case it is plain that the prosecutor has proved that the publication complained of did interfere with the due administration of justice, in requiring the termination of the trial of Mr Anderson.”

31 However, Kirby P did not find that the contempt was proved because of his understanding that it was necessary for the prosecutor to prove that the publisher intended to interfere with the administration of justice. He was in the minority in this view of the law of contempt and later decisions do not support his approach.

32 The third member of the Court in Willesee, Priestly JA, generally agreed with Hope JA and did not specifically address the question of whether the consequences of the publication were relevant to proving the charge of contempt.

33 I was not referred to any later authority on the question. It seems to me that I should act on the basis that evidence that the publication did interfere with the administration of justice is relevant although not decisive to the question before the Court. It is relevant in proof of the tendency or likelihood of the article to interfere with the administration of justice that it actually did so in the particular case with which the article was concerned. But it is not decisive because this Court is only concerned with the tendency to interfere, or the likelihood of interference, at the time that the article is published and there may be other factors, out of the control of the publisher, which either cause that tendency to eventuate into actual interference or immunise the proceedings from the tendency so that no harm is actually caused. The existence of such factors cannot be relevant to the liability of the publisher or the author of the article.

34 I cannot, however, accept that the views of counsel have any relevance at all. It is not unknown for a trial judge to determine not to accede to the joint submissions of both parties. The court may have a wider interest to protect or promote than the interests of the parties before it.

35 I would generally give little weight to the fact that the jury were discharged as a result of the publication. This is because the question whether to discharge the jury is a matter of discretion to be exercised in the particular circumstances of the case and some times it may be an accumulation of matters that ultimately results in the discharge: the publication may be merely “the straw that breaks the camel’s back”. Minds might reasonably differ as to whether the only course available to overcome a possible prejudice caused by the publication is the discharge of the jury. In the present case I do not believe that I would have discharged the jury, or at least not without attempting to discover if any of the jurors had actually read the article. However, that does not mean that the trial judge was in error in deciding to take that course and, in any event, he was not deciding on the likelihood of prejudice to the trial resulting from the publication of the article beyond a reasonable doubt.

36 Therefore I should have some regard to the fact that the trial judge believed that the publication was so prejudicial that he was required to discharge the jury but I am to form my own opinion as to whether the prosecutor has proved that the article when published had the necessary tendency to support a charge of contempt.

(b) What the jury had been told
37 The publisher and journalist placed the transcript of the trial up until the jury was discharged in evidence before me so that I could understand the atmosphere of the trial at the time of the publication and the directions that had been given to the jury that might have been relevant to the likelihood that the publication of the article might have prejudiced that particular jury.

38 There is with respect little that seems to me of any significant relevance. The jury were directed not to have regard to matters outside the trial and in particular to disregard any publicity given to the trial. They were also warned about conducting searches on the Internet. These were general warnings but were not in themselves sufficient, in my opinion, to counteract any prejudicial material published about the conduct of Mr Selim in relation to the prosecution brought against him. The danger of course was that any specific direction relating to the published article might have highlighted the existence of the article and any prejudice it contained.

39 It is clear that before the article was published the jury had been made aware of the proceedings in the Federal Court and the general nature of the allegations against Pan Pharmaceuticals in the civil proceedings. The jury could not have determined the charges in the indictment without an understanding of the context in which it was alleged that Mr Selim had attempted to interfere with material that may have been relevant to those proceedings. The transcript also reveals that the jury were to be made aware of the earlier proceedings before Judge Geraghty because of reference to what witnesses had said in that trial. This is not unusual and it is not difficult to direct a jury in relation to a previous trial.

(c) The nature of the article
40 As has been noted, the article was on page 20 of the Saturday edition of the Sydney Morning Herald in the Business section. This is separate from that part of the paper containing local and international news items. The article was on the second page of the section and did not carry with it any photographs, drawings or other devices that might have drawn a reader’s eye to the article. It was not the major article and was located just about half way down the page. The article’s headline did not refer to the criminal proceedings. The part of the article about which complaint is made is at the end of the article after material which could not in anyway be prejudicial to Mr Selim’s trial.

41 Of course a juror might have been more likely to read the article than a reader with little but a general interest in the history of proceedings relating to Pan Pharmaceuticals. In this regard it is of more significance that a jury had been empanelled and by the time of publication had some understanding of the nature of the proceedings. The article that otherwise had little prominence might have attracted the eye of a juror casually reading the paper simply because of the headline of the article.

Was there a contempt?

42 There are a number of descriptions of what the prosecutor must prove about an article in order to succeed on a prosecution for contempt. In Attorney General (NSW) v X [2000] NSWCA 199, (2000) NSWLR 653, Mason P stated:

170 The prosecutor was required to establish beyond reasonable doubt that the publication had “as a matter of practical reality, a tendency to interfere with the course of justice in a particular case” (John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 at 370). In Hinch Mason CJ (at 27-28) thought that a test of “substantial risk of serious interference” would best reconcile the conflicting demands for a free press and for a fair trial, whilst conceding that it was synonymous or virtually synonymous with other authoritative formulations. Wilson J (at 34) spoke of a need to demonstrate a “real and definite tendency to prejudice or embarrass pending proceedings”. Deane J (at 47) suggested “clear tendency” as a suitable paraphrase. See also per Toohey J at 70.

43 In my opinion there are only two aspects of the article that could possibly give rise to any prejudice to the fair trial of Mr Selim: the use of the word “derail” and the disclosure of irrelevant material relating to the proceedings in the Court of Criminal Appeal. But, perhaps curiously, the latter mitigates the former.

44 It was submitted by Mr Sackar that the word “derail” was synonymous with the word “stop” or “halt”. I am prepared to accept that had the word “halt” been used instead of “derail” there could be little complaint about the reporting of an attempt by Mr Selim to bring his trial to a halt. But I do not accept the submission. I have no doubt at all that the word “derail” is generally pejorative and carries with it a connotation of impropriety. Obviously the word was used figuratively in the article but it inevitably carries with it the picture of a train being forced to leave its tracks usually by an obstacle being placed in its way so that its progress is brought to an abrupt end before it arrives at its intended destination. That is what the word means when used in the active tense. I was referred to no dictionary entry that equates the word with “stop” or “halt”, but to the contrary the only meaning ascribed to the word is that which it expresses in ordinary language, that is to make a train go off its tracks.

45 Of course, as Mr Sackar submitted, the word has to be seen in context. But, when used figuratively in relation to court proceedings, the word plainly conveys to the reader the idea that those proceedings having been intentionally caused to depart from their usual or regular course so that they come to an abrupt end without arriving at their intended destination, a determination on the merits. In my opinion the only meaning conveyed by the phrase “he failed in a bid to derail his District Court retrial” is that Mr Selim had failed in an attempt to improperly cause the proceedings in the District Court to come to an end without the charges being determined by a jury.

46 In my opinion that part of the article clearly conveys to the reader that Mr Selim had unjustifiably tried to frustrate the criminal proceedings then being heard in the District Court by some action that he had undertaken but that he had failed in the attempt. A juror of course would have known that the allegation for which Mr Selim was standing trial was in effect that he had attempted to frustrate the civil proceedings against Pan Pharmaceuticals. The potential prejudice is obvious in that the article might convey to a juror that Mr Selim had attempted to do to the criminal proceedings what he was alleged to have done to the civil proceedings and, therefore, it was more likely that he had done what was alleged against him in the charges before the court.

47 Had the article stopped after the fourth last paragraph, so that what he had done in his attempt to derail the proceedings was not disclosed, there would have been in my mind a clear contempt on whatever formulation of words is used to describe the conduct that the prosecutor must prove to establish the charge.

48 However the article does not stop there. It goes on to indicate to the reader the nature of the attempt to “derail” the proceedings that was undertaken by Mr Selim the week before. He had claimed in the Court of Criminal Appeal that there was a “procedural irregularity” in the case being tried but his claim had failed because the Court rejected it. There is no suggestion in the article that the Court thought that Mr Selim had acted improperly. A perspicacious reader might in those circumstances query the use of the word “derail” by the journalist. True it is that this part of the article contains the vice that it discloses to the reader, and potentially a juror, that Mr Selim had taken proceedings in the Court of Criminal Appeal in relation to the proceedings for which he was being tried but that information alone could not in my opinion carry with it such potential prejudice as to in a clear or real and practical way interfere with or embarrass the proceeding before the District Court.

49 I believe that persons in the community who might be jurors in a criminal trial would generally understand that there are many ways of legitimately challenging the propriety or regularity of proceedings before a court so that proceedings might be brought to a halt by the court itself without those proceedings being determined on their merits. I do not accept that simply because a jury inadvertently learns of pre-trial proceedings, it must inevitably follow that the jurors should be discharged. Of course whether such a course is warranted would depend upon the nature of the pre-trial proceedings and the facts disclosed to the jury.

50 In the present case any possible prejudice caused by disclosure of the proceedings in the Court of Criminal Appeal could have been dispelled, in my respectful opinion, by directions to the jury that the accused was merely doing what he was lawfully entitled to do and that there was a statutory provision that permitted him to take the course that he did. Even the use of the word “derail” could in the context of the article been addressed by a strong comment on the inappropriateness of the use of that term by the journalist to describe a completely legitimate and unexceptional procedure that the accused had a right to pursue in order to test the regularity of the proceedings.

51 As I have made clear, I am not to be taken as suggesting that it was not open to the trial judge to determine in the exercise of his discretion to discharge the jury. I am simply considering whether I am satisfied beyond reasonable doubt that the article read as a whole and in the context of the circumstances at the time of its publication had a real or clear tendency to interfere with the administration of justice in this particular trial. In determining whether the article amounted to a contempt I am not deciding whether the article should have been published when it was or whether the journalist and publisher were reckless as to the effect on the trial of the publication of the article. But I am conscious of the high threshold that has to be overcome by the prosecution in any criminal proceedings.

52 I am not satisfied beyond reasonable doubt that the publishing of the article did have a sufficient risk of serious interference with the proceedings before the District Court to amount to a contempt.

53 In reaching that view I take into account that in more recent times the courts generally have been less prepared to treat jurors as some kind of exotic or fragile beings who must be protected from the ravages of the outside world while performing their civic duty. The whole criminal justice system operates on the basis that jurors can put out of their minds extraneous material that has no real bearing upon the issue that they are to decide even if that material might possibly have some prejudicial aspect.

54 A number of statements to this effect were recently gathered in Kanaan v R [2006] NSWCCA 109 and Mr Sackar sought to rely upon that decision in which the Court of Criminal Appeal held that a miscarriage of justice had not occurred notwithstanding pre-trial publicity in the media. However that decision cannot be taken too far in considering whether a contempt has occurred. In that case the Court was considering retrospectively a completed trial and deciding whether, in light of all that had happened in the trial and the issues to be determined by the jury, the published material had ultimately caused a miscarriage of justice. In contempt proceedings the court is not concerned with the final outcome of the proceedings and is not deciding whether the publication did cause the trial to miscarry. Yet it is not irrelevant in contempt proceedings for the court to have regard to what has been said in relation to criminal trials generally about the ability of jurors to follow directions and put out of their minds prejudicial but irrelevant material especially when published in the media.

Further observations

55 Although I am not persuaded that the article in its entirety amounted to a contempt, I should not be taken to exonerate the publisher and journalist of any wrongdoing whatsoever in relation to the publication of this article. I believe that on the material before me, and I note that neither the journalist nor the publisher sought to put on any evidence to explain the publication or the circumstances surrounding it, the publication of that part of the article concerned with criminal proceedings either taken or to be taken against Mr Selim was unjustified, irresponsible and was with at least reckless disregard for the criminal justice system and the rights of an accused person standing trial. The fact that a trial judge can be trusted to give directions to overcome any possible prejudice from such a publication and rely upon the good sense and fairness of a jury to disregard it is not a reasonable basis for the publication to proceed.

56 Whatever justification in the public interest there was for reporting on the civil proceedings, there was none at all that I can see in that part of the article concerned with the criminal proceedings, at least none to warrant the publication at a time when a trial was proceeding with a jury. The fact that Mr Selim had sought to move the Court of Criminal Appeal to intervene in his retrial had nothing at all to do with the theme of the article, that there had been delays in the proceedings involving Pan Pharmaceuticals and Mr Selim. There could be no suggestion that the challenge had delayed the retrial that was, as the article acknowledges, proceeding at the time the article was published.

57 Any journalist who wishes to report on current criminal proceedings involving a jury must surely understand that there is a very substantial risk of interfering with those proceedings if a report is published of any part of the proceedings that occurs in the absence of the jury. That must be so whether the proceedings are in the trial court or some other court. The jury are absent because the matter is of no relevance to them. A moment’s investigation by the journalist would have revealed that the Court’s judgment had not been published on the Internet. A moment’s reflection would have made it clear to the journalist that she was revealing something of which the jury would have been unaware and could not have discovered. A moment’s thought should have alerted the journalist to the real risk posed to the trial proceedings then taking place by taking such a course.

58 It is obvious that I have serious concern about the use of the word “derail”. I simply do not understand why that word was chosen if not to disparage Mr Selim’s conduct. I cannot believe that any person who uses the English language as part of her profession as a writer could fail to appreciate the significance of the word and its connotations. The use of the word was gratuitous and at least unfair because it was obvious that Mr Selim simply did what he was entitled to do and what the law assisted him to do; to challenge a ruling made by the trial judge on a question of procedure. The article avoided being a contempt of court by the narrowest of margins.

Law reform
59 A criminal trial with a jury imposes a very substantial financial burden upon the community to say nothing of the burden imposed upon members of the public in fulfilling their civic duty. The discharge of a jury before reaching verdict throws away the costs incurred to that point in time and puts at nothing the time and effort expended by the members of the jury. Further, delay is inimical to the criminal justice process and courts are constantly trying to find the means of cutting delay while preserving the rights of the parties and keeping the costs of trials within reasonable limits. The fact that a jury is discharged without verdict inevitably causes delay to the resolution of the proceedings that have been aborted.

60 I understand that the law of contempt has significant implications for the rights and freedoms of the press and hence the court imposes a high threshold on the prosecutor in proving what is a criminal charge. But there is no reason in my opinion why a publisher should not be called upon to make redress for its conduct which results in a significant financial cost to the community and that can be shown to be a result of negligence in the reporting of matters touching upon criminal proceedings. Others in the community who by their negligent acts cause financial detriment can be called to account in civil proceedings. It seems to me with respect that some consideration should be given to the enactment of a provision that gives this Court power to make orders against a publisher for the financial consequences of publishing an article which results in the discharge of a jury even though the article does not amount to a criminal contempt.

Costs

61 In the normal case costs would follow the event and the dismissal of the Summons would result in an order in favour of the respondents for costs. However, I am not presently satisfied that this is the normal case having regard to the fact that the proceedings are in the nature of a criminal prosecution brought by a public officer in the interests of the community and having regard to the conduct of the respondents. I will allow the parties to make written submissions on costs within 21 days from the date of this judgment.

Order

62 The Summons is dismissed.

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AMENDMENTS:


12/03/2008 - Edit error - Paragraph(s) Cover sheet


LAST UPDATED:
12 March 2008