GPR 194 (March 1995)

The Law of Contempt

The Australian Press Council has proposed radical changes to the law of contempt to make it conform to fundamental principles of criminal law. This follows a bizarre contempt case in which the NSW Court of Appeal, as well as a newspaper, inadvertently caused the abortion of a man's trial by adverting to details of his previous convictions.

The then Chairman of the Press Council, Professor David Flint, said: "Contempt of court by alleged prejudice to a fair trial is a criminal offence. Those found guilty may be deprived of their liberty or subjected to heavy fines. It is fundamental to our legal system that criminal offences are heard and decided by a jury, and that an alleged offender cannot be found guilty unless he has a guilty mind.

"As the Australian High Court judge, Sir Gerard Brennan, observed in He Kaw Teh v R (1985): 'A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present. The mental element is mens rea or guilty mind.'

"Nevertheless, as a exception to the general rule, contempt cases are at present heard by a judge or judges sitting without a jury, and they can find alleged offenders guilty even though the alleged offence was inadvertent."

The Press Council proposes that no person or organisation be found guilty of contempt except after a trial by jury in which it is proved that the alleged offenders had a 'guilty mind'. A recent case, Registrar of the Court of Appeal v John Fairfax Group Pty Ltd & Anor, appeared to reinforce the need to introduce the concept of the 'guilty mind' into contempt law.

"In that case," said Prof Flint, "the NSW Court of Appeal itself could be said inadvertently to have prejudiced the fair hearing of a trial. The facts were as follows.

"In November 1993, a lawyer, Christopher Murphy, unaware that a man's trial was proceeding, mentioned details of the man's previous convictions in a Fairfax newspaper, The Sun-Herald. Publication of the details inadvertently caused the abortion of his trial.

"In October 1994, in the process of finding Fairfax and Mr Murphy guilty of contempt, three judges of the Court of Appeal, unaware that another trial of the same man was proceeding, mentioned details of his previous convictions. Publication of the details in their judgment thus inadvertently also caused the abortion of a trial. This outcome was brought to the attention of the judges in a hearing on penalty in December.

"On February 23, 1995, the Court of Appeal, applying the present law of contempt, confirmed the guilty verdicts against Fairfax and Mr Murphy. Although no fine was imposed, Fairfax's fault in publishing the contempt was, according to the court, 'adequately reflected in an order that it pay the claimant's costs'. Fairfax also had to pay its own legal costs."

See also
The Council's current position on Contempt by Publication
Index of material on the site on courts and contempt