Hinch v Attorney-General [1987] VicRp 62; [1987] VR 721 (11 December 1986)

HINCH v ATTORNEY-GENERAL

SUPREME COURT OF VICTORIA FULL COURT

YOUNG CJ, KAYE and NICHOLSON JJ

10-12 November, 11 December 1986

Young CJ: The first-named appellant (whom I shall refer to simply as "Hinch") has since 1979 conducted a programme every week day morning from 8.30 a.m. to 12.00 noon on one of the Melbourne radio stations. The station is owned by the second-named appellant. Both appellants appeal against their convictions for contempt of court alleged to have been committed by three broadcasts made by Hinch on 13 and 15 November 1985 and 11 March 1986. The text of those broadcasts is set out in the judgment of Kaye J which I have been able to study in draft. His Honour has also set out the facts and I shall not repeat them, although I shall add some further facts by way of elaboration. I agree with Kaye J as to the disposition of the appeals but I shall endeavour to set out my conclusions in my own way.

Hinch is a very experienced journalist having worked in that occupation for 25 years. He says that he is constantly conscious of and concerned with the law relating to defamation and contempt. During the course of his cross-examination before Murphy J he exhibited a clear understanding of the relevant part of the law of contempt and was able to give what the trial Judge described as "a pretty good definition" of contempt of court in relation to media publications. Moreover, Hinch was well aware that upon a trial for a criminal offence, no reference, generally speaking, may be made to an accused's prior convictions. He was also aware of the possible consequences of referring to an accused's prior convictions. Before making the first broadcast Hinch turned his mind to the question whether the publication of a reference to Father Glennon's prior convictions would be a contempt of court and was aware that he should not mention an accused person's prior convictions.

In spite of all this knowledge and experience Hinch decided quite deliberately to make the broadcasts referring to Father Glennon's previous convictions because he hoped that it would cause Father Glennon's immediate removal from the position which he held with the Peaceful Hand Youth Foundation Pty. Ltd. The explanation which Hinch offered in cross-examination was that it was more important to him to stop Father Glennon from running the children's camp than to avoid any prejudice to his trial. He said that he had a far bigger responsibility to the community at large than he did to Father Glennon. The statements in the broadcasts carried the clear implication that the accused was guilty of the offences charged. Hinch seems not to have contemplated the possibility that Father Glennon might be innocent and, indeed, must be deemed to be so.

During the argument I suggested to Hinch's counsel that the attitude thus displayed and similarly displayed by Hinch in other cases in which he has been punished for contempt indicated that Hinch placed himself above the law and claimed a freedom to determine what he might do and what he might not. Counsel replied, without refuting the suggestion, that such a conclusion could only be relevant on the question of penalty. Counsel might be right in that response, although since the jurisdiction is essentially discretionary there is not the same need to consider as separate questions the question of guilt and the question of punishment: see Davis v Baillie [1946] VicLawRp 76; [1946] VLR 486, at p 493, per Fullagar J. I have recorded the attitude taken by Hinch, however, for the purpose of showing that the case appears to me to be far removed from the class of case which Jordan CJ had in mind in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd [1937] NSWStRp 22; (1937) 37 SR (NSW) 242 upon which so much reliance was placed. In his judgment in that case, Jordan CJ said, at p249:

"It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant."

In that case a motion for contempt against the publishers of a newspaper was dismissed because in publishing a series of articles dealing with the organization of the bread trade, some of which were critical of the appellant company's activities, the publishers of the newspaper had no intention to prejudice pending litigation and no knowledge of its existence. It thus seems clear that the important part of Jordan CJ's judgment which I have quoted is the last sentence. The discussion of public affairs is not to be suspended because the discussion may, "as an incidental but not intended by-product" cause some prejudice to a litigant.

It is also worth recalling that the frequently quoted passage from Jordan CJ's judgment which I have set out was immediately preceded by the following passage, at pp 248-9; "It is a well established general rule that any publication which has a tendency to interfere with the administration of justice by preventing the fair trial of any proceeding in a court of justice is a contempt of court, and that if it is shown beyond reasonable doubt that such interference was either intended or likely, this court will exercise its jurisdiction to punish summarily the criminal offence which is constituted by the contempt: Bell v Stewart 28 CLR 419 at pp 430-2. When intention is established to interfere with the proper administration of justice by means of a publication which has a tendency to produce that result, a clear case of contempt is made out, calling for sharp punishment. Where the particular form of contempt complained of is the publication of matter which in fact has a tendency to prevent a fair trial by prejudicing the parties to litigation in a court of justice in conducting that litigation, if intention to cause such prejudice is established a serious case of contempt is at once made out, whether the publication refers to the subject-matter of the litigation, or takes the form of mere general denigration of the party in question: Higgins v Richards 28 TLR 202; Ex parte Myerson; Re Packer and Smith's Weekly Publishing Co 39 WN 260. But if no such intention is established, the rule that the publication of matter tending, or even likely, to prejudice a party in conducting litigation constitutes a contempt of Court is not invariable."

In the present case Hinch denied that he had any intention of interfering with the course of justice but in my opinion the evidence as a whole justifies the inference that he was indifferent to whether or not Father Glennon's trial was prejudiced so long as the priest was removed from the position which he held.

The celebrated passage from Jordan CJ's judgment seems to have been treated as justifying the view that where a published statement has a tendency to interfere with the course of justice, it may be justified if it is made in what the maker of the statement or the Court considers, on balance, to be the dominant public interest to be protected. At any rate much of the argument before us seemed to me to proceed upon the assumption that the principal question for decision was whether a fair trial for Father Glennon or unbridled discussion of Father Glennon's continuing in his position in the Peaceful Hand Youth Foundation was the dominant question of public interest.

The question which is the dominant question of public interest cannot, of course, be determined by the maker of the statement about which complaint is made. I have referred to that possibility only because so much of the material and the argument was directed to Hinch's view.

There is a clear statement of the principles to be applied in the balancing of interests in the judgment of Gibbs CJ in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25, at p 60 where his Honour said: "The conclusion reached by the Federal Court was that the adverse effect of the continued public proceedings of the royal commissions upon the judicial proceedings in that court outweighed the public interest involved in having the proceedings of the Commissions continued in public. If their Honours considered that they had a discretion to weigh one consideration against another, and to make a discretionary judgment as to whether a contempt had been committed or was likely to be committed they were mistaken. The balancing of interests which is mentioned in Attorney-General v Times Newspapers Ltd [1974] AC, at pp 294, 296, 301, 319, is done by the law in formulating the principle to be applied, and not by the court in deciding a particular case. The resulting principle requires that the court be satisfied that there is a real risk that the material alleged to be a contempt will interfere with the administration of justice in pending proceedings before it can hold that a contempt has been committed or is threatened. The discretion of the court lies in dealing with a contempt, not in deciding whether a contempt has been committed. The jurisdiction to punish as a contempt something otherwise lawful is exceptional and drastic and must be exercised with great care."

It was suggested in argument that the proposition that the balancing of interests is done by the law was not accepted by a majority of the members of the High Court. It is said that there are two approaches, the "normative" and the "balancing": see Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650, at pp 682-3, per Priestley JA. I agree with what Hope JA said in Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650, at pp 676-7, namely that the position is not clear. But I shall return to that question later.

The test for determining whether there has been a contempt of court may be taken from the judgment of Gibbs CJ in the Builders Labourers' Case, where his Honour said, at p 56: "There is a contempt of court of the kind relevant to the present case only when there is an actual interference with the administration of justice, or 'a real risk, as opposed to a remote possibility' that justice will be interfered with: cf. Attorney-General v Times Newspapers Ltd [1974] AC at p 299. The essence of this kind of contempt is a 'real and definite tendency to prejudice or embarrass pending proceedings': John Fairfax and Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351, at p 372." See also, per Mason J, at p 99, and per Brennan J, at p. 166. For the reasons for excluding reference to an accused's prior convictions see Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143, at p 150, per Moffitt p

Subject only to the question when the trial is likely to take place, there is no doubt that the publication of Father Glennon's previous convictions has as a matter of practical reality a tendency to interfere with the due course of justice. The defence sought to assert that because it was unlikely that the trial would take place for 12 months or more, the public memory of the broadcasts would have been so dimmed that they would no longer have been likely to influence any potential jurors.

The question whether statements have been made which pose a real risk that the administration of justice will be interfered with must be determined as at the date of publication: R v Pacini [1956] VicLawRp 84; [1956] VLR 544, at p 547. But it does not follow that there must in every case or in any particular case be an enquiry as to the likely date of the trial. It would not be conducive to the fair and proper administration of justice to make the decision whether a contempt had been committed or whether a contempt should be punished depend upon the trial of an issue raised as to when it was likely that a particular trial, whether civil or criminal, might take place. This is not to deny that the public memory might not be dimmed by the lapse of time or to deny the relevance of the length of time before trial that the alleged contempt is committed: it is simply to insist that the probable date of a trial will not, in most cases, be a suitable question to be resolved by evidence as to when it is likely to occur. In the present case there was virtually no evidence led as to when Father Glennon's trial was likely to take place although there was some cross-examination of Hinch as to his knowledge of recent legislation designed to expedite the hearing of sexual offences. There was evidently a good deal of argument before Murphy J as there was before this Court as to when Father Glennon's trial was likely to take place. At the time of the hearing before Murphy J no committal proceedings had taken place but nothing in the material suggested that his Honour was obliged to make a finding as to when the trial was likely to take place. The learned Judge thought that the committal "would in the normal course take place in the relatively near future"; his Honour did not express a view as to when the trial might take place but he might properly have taken the view that at worst the trial would probably take place within a year of the committal. There was in fact some evidence to that effect. It might occur very much earlier, depending upon such matters as whether the accused remained on bail, the availability of witnesses and so on. His Honour's judgment was delivered in May: we now know that Father Glennon was committed for trial in September and it seems probable that the trial will not take place until some time next year. At the time when Murphy J. dealt with the matter his Honour would have been justified in concluding that the trial would probably take place within three to eighteen months.

Notwithstanding the length of time between the making of the broadcasts and the probable date of the trial, the learned Judge was, in my opinion, entitled to take the view that the public memory of the broadcasts would not be so far dimmed as to eliminate their probable effect. The broadcasts were probably heard by about 200,000 people, 100,000 of whom live in the metropolitan area, from which the jury would be drawn. The fact that the broadcasts were heard by so many would doubtless serve to keep the memory of them alive, particularly if, as Hinch asserts, the public is deeply concerned with the problem of child molestation. Doubtless the broadcasts provoked much discussion which would serve to keep memory of them alive. The broadcasts were couched in terms which were calculated to provoke and perpetuate public discussion and this aspect of the matter is I think of great importance in attempting to assess the tendency of the statements to embarrass pending proceedings. Further there were other features of the broadcasts which would serve to keep memory of them alive, namely having regard to the time at which the broadcasts were made a majority of the audience would probably have been women who might be expected to be particularly concerned with child molestation, the very fact that Father Glennon was an ordained Catholic priest, calling himself a non-denominational priest and the general inflammatory and highly coloured language in which the broadcasts were expressed.

Allied to the question of the lapse of time which must occur before Father Glennon's trial is the question whether the trial Judge should have acceded to an application to adjourn the proceedings until after Father Glennon's trial was complete. That his Honour ought to have done so was put in the forefront of the argument for Hinch on the appeal. The Solicitor-General opposed the application and his Honour simply said that, having regard to all the circumstances, he refused the application. The transcript of the argument, however, is not included in the appeal book. In my opinion, his Honour was entitled to proceed with the hearing and was not obliged to say more in refusing the adjournment. It must be remembered that the question whether a punishable contempt has been committed must be judged as at the time of the acts alleged to constitute the offence and nothing that occurs subsequently can have any relevance to the determination of that question.

It was submitted that there was a rule of practice in New South Wales, the Australian Capital Territory and in England that motions for contempt should be adjourned until after the hearing and determination of all the criminal proceedings in question. Reliance was placed upon Attorney-General for New South Wales v John Fairfax and Sons Ltd (1985) 1 NSWLR 402. It may be noted that in that case the Crown sought the adjournment of motions for contempt until after the completion of the relevant criminal proceedings: the application was opposed by the alleged contemnor. The judgments support the contention that the practice suggested does exist in New South Wales, but that it is not a rigid practice. However that may be, there is no such practice in Victoria and I do not think that we should attempt to lay down a practice. Whether proceedings, when instituted, should be adjourned on the application of either party must depend upon all the circumstances of the case. We should not fetter the discretion of the Court by attempting to lay down a practice. Much more consideration of the issues involved would be necessary before such a course were taken. Moreover, a practice should be evolved out of the experience of a number of cases. If an adjournment were to be granted the proceedings might as well be by way of indictment. The justification of the use of the summary jurisdiction is that recourse to trial by indictment is too dilatory: see John Fairfax and Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351, at p 370. I do not think the judgment of the learned Judge can be impugned simply because he refused the application for an adjournment.

I return to the question of balancing the public interest in allowing uninhibited discussion of matters of public concern against the public interest in ensuring that an accused has a fair trial. In this connection I find it unnecessary to decide whether the approach of Gibbs CJ in the Builders Labourers' Federation Case which I have quoted above was accepted by the other members of the Court or whether the Court must itself in deciding the particular case decide where the balance of the public interest lies. Whichever approach is adopted, the balance cannot assist the appellant.

In Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143, Moffitt P said, at p 151: "There is no authority that to broadcast to the public by newspaper, radio or television that a man has prior convictions, or has committed past crimes, after he has been charged ceases to be contempt because it is published in the course of some legitimate discussion upon a matter of public interest."

A little later, after referring to Jordan CJ's judgment in the Bread Manufacturers Case, Moffitt P went on, at p 151: "In my view, the quoted words of Jordan CJ were not intended to encompass, and in any event should not be applied in terms to, all matters likely to prejudice a person about to stand trial upon a criminal charge. The priorities in respect of the rights of litigants in a civil trial must be quite different from those where there is involved the right of a person to a fair trial upon a criminal charge. The right to a fair trial upon a criminal charge is so fundamental to our system of law that in any priorities it must be regarded as entitled to a primary place. Even in relation to a criminal trial there has been some compromise recognized by authority in favour of competing public interest to know the facts, but this compromise has been given effect to in a somewhat limited way. This is done, not by preferring the competing interest to the prejudice to the trial, but by ruling out contempt on the ground of the remoteness of what is said to the trial or any prejudice to it. In such cases the boundaries of what is permitted and what is forbidden are somewhat precisely drawn, with the satisfactory result that publishers can readily be aware in relation to a pending criminal trial that publications will constitute contempt."

Again, at p 152, his Honour said: "I think the conclusion can, and should be, arrived at that to publish on radio, television or in a newspaper that a man, then charged with a criminal offence, has past convictions, or has committed past crimes, or to detail them, has a tendency to prejudice the fair trial of the man charged. I find it difficult to envisage a case where such a publication would not be contempt of court, but certainly it is contempt in any case remotely resembling the present. To decide otherwise, would be to relegate to a secondary place, where it has never been placed by any authority, a fundamental principle of the general law, long accepted as basic and necessary to secure the fair trial of a person."

After referring to these passages in Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650, at p 678, Hope JA said: "The application of the principle involves a balancing of the public interest in the due administration of justice by the law or by the court against the public interest in the ventilation of the question of public concern. It is clear that different considerations apply, in balancing these competing interests, between publications prejudicing civil trials and those prejudicing criminal trials."

In the Builders Labourers' Case, Mason J observed, at (152 CLR) pp. 98-99:

"The argument that there is a risk of contempt has in my view drawn too heavily on the principles that have been applied in cases in which newspapers have published material in advance of a criminal trial. These principles have been fashioned to meet the dangers of trial by newspaper when the very occasion for the report in the newspaper is the pending or expected criminal trial and the report, generally of a sensational and dramatic kind, is directed to the very issue which will arise at the trial - the guilt or innocence of the accused. In such a case the paramount public interest is that of maintaining the administration of justice free from prejudice and interference. The countervailing public interest - freedom of discussion - is exclusively related to the guilt or innocence of the accused, the issue to be determined at the trial. In this situation freedom of discussion has no independent value and is therefore readily subordinated to the public interest in the administration of justice."

From these statements of principle I would extract the following as relevant to the present case. First, that to publish, as Hinch did, that Father Glennon had been previously convicted, particularly of sexual offences, has clearly a tendency to prejudice his fair trial. The countervailing public interest, freedom of discussion of the guilt or innocence of the accused, must be subordinated to the public interest in the administration of justice. The freedom claimed is not, however, said to be to discuss Father Glennon's guilt or innocence. The freedom claimed is rather to discuss whether Father Glennon should remain in his position with the Foundation. That question has two aspects. First, it might be said that, having been charged with sexual offences, he should not remain at his post whilst the charges were pending. Secondly, it might be said that owing to previous convictions Father Glennon ought not to be allowed to hold a position which brought him into contact with young children. I see no reason why the first aspect should not be discussed publicly, but every reason why the second aspect should not be. Hinch says that he deliberately referred to Father Glennon's previous convictions because he regarded it as necessary to enable parents to form a judgment whether their children should attend any function under the patronage of the Peaceful Hand Youth Foundation. That point could have been made as effectively or almost as effectively if there had been no reference to Father Glennon's previous convictions and steps had been taken to urge that he stand down pending the disposition of the charges against him. The assertion to the contrary and the insistence on the reference to previous convictions points clearly to an attempt to try Father Glennon in the public media, a course against which the summary power to punish for contempt must in my opinion be exercised: cf. John Fairfax and Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351.

I have not overlooked what was said by Lord Diplock in Attorney-General v English [1983] AC 116, at p 143 to the effect that the test is not whether an article could have been written as effectively without the offending passages. But his Lordship went on to say that the test is whether the risk created by the words actually used was no more than an incidental consequence of expounding the main theme. This is the same idea as is expressed by Jordan CJ in the Bread Manufacturer's Case and I have already indicated why I think the present case is far removed from anything contemplated in that case. "The public interest in the fair trial of an accused person is powerful indeed": Registrar of Court of Appeal v Willesee at ((1985) 3 NSWLR) p. 679, per Hope JA. And if I may paraphrase and adapt a passage in his Honour's judgment on the next page (p. 680), I have concluded that if the matter is one for judgment by the Court the relevant public interest lies against the appellant's being entitled to broadcast the information concerning Father Glennon's prior convictions, which were not made fortuitously in the course of discussing a matter of public interest but deliberately in order to institute a kind of trial by media. If the true principle be that the question is to be resolved by the law and not by a judgment as to balance, the same result would follow and the publications would constitute a punishable contempt.

To allow reference in the media to the prior convictions of a person accused of criminal offences, as in the present case, even though it is said that there was no intention to prejudice the fair trial of the accused, would be to open the door to trial by media. It is a door which, once opened, will not be easily closed for it may be expected that the media will always deny an intention to interfere with the course of justice whilst maintaining its right to publish what it conceives to be in the public interest.

I would dismiss the appeal of the first-named appellant.

The second-named appellant also advanced a substantial argument. That argument was directed wholly to the question whether Hinch had committed a punishable contempt. I do not propose to deal with the arguments advanced by Mr. McPhee QC in detail although I have considered them carefully. Suffice it to say that for the reasons which I have attempted to give I think that Hinch was rightly convicted of contempt and that the appeal of the second-named appellant must also be dismissed. It was not contended that the second-named appellant did not have a vicarious criminal responsibility in the event of the first-named appellant's being found guilty.

I turn to the question of sentence. It is a difficult question.

In Davis v Baillie [1946] VicLawRp 76; [1946] VLR 486, at p 492, Fullagar J said: "When the Court punishes in cases of this type, it does so not to uphold the dignity of Judges or jurors but 'in the interests of the public in general, and in particular of suitors, whose right to obtain a hearing of their suit free from prejudice or bias might otherwise be imperilled': per Griffiths CJ in Packer v Peacock [1912] HCA 8; (1912) 13 CLR 577, at p 582. This 'right of suitors' is eloquently vindicated in the judgment of Madden CJ in the Peacock Case [1911] VicLawRp 74; [1911] VLR 401, at pp 409 et seq; [1911] VicLawRp 74; 33 ALT 69, and by Higinbotham CJ in In re Daly; In re Winter (1889) 15 VLR 402, at pp 404 et seq."

I do not think that we should interfere with the sentence imposed by Murphy J unless we were satisfied that his discretion miscarried.

For the broadcasts on 13 and 15 November 1985 his Honour fined Hinch $25,000 and for the offence on 11 March 1986 he sentenced the contemnor to 42 days' imprisonment. The second appellant was fined $25,000 on the first motion and $30,000 for the contempt committed in March 1986.

So far as the first-named appellant was concerned, it was contended that his Honour's discretion entirely miscarried in that he gave improper weight to Hinch's previous convictions for contempt which, it was said, were of an entirely different character. It was further said that it was not open to the learned Judge to find that the likelihood was that Hinch would not have to pay any fine imposed.

The question whether Hinch would personally pay any fine imposed was not really investigated before Murphy J. The evidence was that Hinch's legal costs were being paid by the second-named appellant, but his Honour went on: "I see no reason to conclude that he would suffer any penalty at all by the imposition of a fine in these two cases. In fact the likelihood is that the opposite is the case. Yet, in my opinion, it is necessary to impose a penalty which will be likely to deter Mr. Hinch from further similar acts of defiance amounting to contempt of court". I agree in the sentiments expressed in the last sentence which I have quoted but the question whether it is probable that Hinch would personally pay any fine imposed cannot be properly investigated by the Court. There is nothing to prevent a third party from paying a fine for a person and whatever investigation is carried out by the Court, it cannot forecast the activities of third persons. Moreover, the usual reticence of the Crown from participation in the sentencing process makes the conduct of such an investigation almost impossible. I do not think we are entitled to assume that Hinch would not personally pay any fine imposed. Moreover, it is wrong in principle to fix the amount of a fine upon the assumption that it will be met by someone other than the offender: see Fox and Frieberg, Sentencing, 1985, p 139. Before fixing a fine in the ordinary criminal jurisdiction, a court is required to take into account the circumstances of the offender: see Penalties and Sentences Act 1981, s13E. But general provisions relating to sentencing should not, unless expressly stated, be treated as applicable to sentencing for punishable contempts of court: cf. Morris v Crown Office [1970] 2 QB 114 applied in Lee v Walker [1985] QB 1191.

Although there may be circumstances in which the question who is to pay the fine is a relevant consideration (cf. Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53, at pp 56-7), I think that in the present case the learned Judge was not entitled to take into account in fixing the amount of the fine to be imposed his assumption that Hinch would not pay it and to the extent that his Honour did so his discretion miscarried. It is not clear whether his Honour increased or reduced because of the assumption made the fine that he would otherwise have imposed. I therefore think that we should set aside the sentence imposed and resentence the appellant. We should do this independently without reference to the sentence imposed by Murphy J.

The contempts charged on the first motion were serious. It is necessary to impose a penalty which is likely to deter Hinch and others from repeating similar acts. Taking into account all the considerations urged on Hinch's behalf I propose that this Court should impose a fine upon Hinch of $15,000 on the first motion.

His Honour fined the second appellant $25,000 on the first motion. It is not easy to isolate in his Honour's reasons the considerations which he regarded as relevant to the sentencing of the second appellant but there is a number of reasons why I think we should set aside the sentence against it. First, since we are resentencing Hinch, it is desirable that we resentence the second appellant so that the sentences can be seen to have some correlation. Secondly, it seems that in sentencing both appellants the learned Judge may have taken irrelevant considerations into account in that he observed that it has become common in this Court for long criminal trials to be aborted because of media publication of offending material during a trial with consequent expense to the State. The aborting of a trial because of some publication in the media of material likely to prejudice the fair trial of an accused is the result of the decision of a trial judge made without hearing the publisher. The possible additional expense to the State in such a case is not relevant to the question of the appropriate penalty to impose upon the second-named appellant in the present case. Thirdly, I am disposed to the view that the sentence imposed on the second appellant was in itself excessive.

The most potent consideration in favour of a severe penalty for the second appellant was that Hinch was allowed by the station, as his Honour said, "carte blanche" in a "high risk area". But as pointed out in R v Wattle Gully Gold Mines NL [1980] VicRp 57; [1980] VR 622, a fine imposed upon a corporation in reality punishes the shareholders rather than those who are guilty of the offence. In this class of case, however, the Court is justified, in order to deter others, in imposing such a fine as will ensure that the directors and managers of the second-named appellant and of other broadcasting stations will take steps to ensure that those to whom they entrust the broadcasting will not seek to place themselves above the law and interfere with the due course of justice.

YOUNG CJ Taking these considerations into account I propose that the Court should impose a fine of $15,000 upon the second-named appellant in respect of the offences embraced by the first motion.

So far as the second motion is concerned the learned Judge characterized Hinch's action as an act of defiance. I think that his Honour was entitled so to regard it for it was made after the first notice of motion had been served alleging that the November broadcasts constituted contempts of court. It is not clear whether the Crown Solicitor's letter of 5 March 1986 had come to Hinch's knowledge before the broadcast. The letter had gone to the appellant's solicitors but no attempt seems to have been made to ascertain by cross-examination who had seen it. Nevertheless the broadcast of 11 March 1986 ignored the warning contained in the proceedings which had been served and the learned Judge was therefore justified in describing it as an act of defiance.

The grounds of appeal which were argued against the sentence of imprisonment were substantially the same as those argued in respect of the first motion. In summary they are that the sentence was excessive and that the learned Judge took into account irrelevant considerations but ignored other considerations. Consistently with what I have said in respect of the first motion I consider that we should resentence Hinch in this case as well.

Upon this aspect of the matter the Court has had an unusual submission on behalf of the Attorney-General. In each case the Attorney-General has moved the Court for an order committing Hinch to prison for contempt of court. But after the learned Judge had convicted Hinch, the Solicitor-General informed the learned Judge that he had been instructed to submit that these were not appropriate cases for a prison sentence. Such a submission is a departure from the usual role of the Crown in respect of penalty. The Crown generally makes no submission in respect of penalty although the Court is often assisted by Crown submissions as to the sentences available and any relevant statutory provisions. The submission was received by Murphy J with the observation that the sentence is of course a matter for the Court. On appeal Dr. Pannam's summary of argument contained the paragraph: "The Solicitor-General stated to the Court that the Attorney-General did not think [sic] that the contempt warranted imprisonment. The learned Judge did see fit to expressly deal with the matter ... This was a most important aspect of the matter." The Solicitor-General repeated the submission in this Court. He submitted that the

Court should not make a martyr of Hinch. In the circumstances of this case, however, such a submission made on behalf of the Attorney-General in favour of the first-named appellant is very likely to be misunderstood by the community and I did not find it helpful. The sentence to be imposed must be a matter for the Court alone.

Reluctant as I am to impose a sentence of imprisonment in the case of a man like Hinch, of whom many people have spoken very highly and who has undoubtedly rendered service to the community, I am unable after considering all the possible sentencing alternatives to think of any sentence other than imprisonment which would adequately mark the seriousness of the offence and at the same time act as a deterrent to Hinch and others from instituting in this country trial by media. The third broadcast was, if not an act of defiance, at best an act of reckless indifference to whether Father Glennon should have a fair trial. The Court cannot condone such conduct in any way. If the rule of law and the authority of the courts are to be maintained, the sentence must show that no-one can place himself above the law.

YOUNG CJ In all the circumstances I would impose a sentence of 28 days' imprisonment in respect of the second motion.

The second-named appellant must also be sentenced on the second motion. It is not clear whether it had before the broadcast of 11 March 1986 seen or been aware of the Crown Solicitor's letter of 5 March which was addressed to its solicitors. But it had been served with the Attorney-General's notice of motion in respect of the November broadcasts and this fact together with its knowledge of Hinch's previous record of contempts of court (although they were contempts of a different character from those with which we are at present concerned) should have brought home to the directors and managers of the company the importance of their duty to ensure that their station is not used for the dissemination of material likely to interfere with the fair trial of accused persons. The second-named appellant and others should be deterred from allowing such dissemination. I think a fine of $25,000 should be imposed upon the second-named appellant in respect of the second motion.

Kaye J: The appellants Derryn Hinch and Macquarie Broadcasting Holdings Ltd. appeal against orders made by Murphy J whereby they were convicted of contempt of court, fines were imposed upon them and a custodial sentence was passed upon the appellant Hinch.

The appellant company is the proprietor and operator of radio station 3AW. The appellant Hinch is a journalist who broadcasts "talk-back" programmes through the medium of the radio station.

By two notices of motion the Attorney-General sought orders that the appellant Hinch be committed to prison and that a writ of sequestration be issued against the appellant company, or that both the appellants be otherwise dealt with for contempt of court. The orders sought under the first notice of motion, which was issued on 14 February 1986, arose out of two broadcasts made by the appellant Hinch on 13 and 15 November 1985; the second notice of motion, which was issued on 19 March 1986 and after service of the first notice of motion, arose out of a broadcast made by the appellant Hinch on 11 March 1986.

The first broadcast was made after Michael Charles Glennon was charged on 12 November 1985 in the Magistrates' Court at Preston on an information alleging nine counts of indecent assault, one count of buggery, and two counts of assault with intent to commit buggery. The offences were alleged to have been committed between 1 January 1975 and 30 June 1985 upon young male persons. Glennon was remanded on bail to appear at the Melbourne Magistrates' Court on 8 April 1986. On the following day, 13 November, in a programme broadcast by the radio station, the appellant Hinch said as follows: "I think by now most regular listeners would know that my attitude ... and what it is about poachers in the sanctuary, those who use their position to prey on the vulnerable, those who use a position of trust for their own personal gain, those who use their position of trust and authority for their own sexual gratification, and I've talked about it many times on this programme before.

"The doctor who examines a woman for possible breast cancer and uses that traumatic time, that fear of a mastectomy to fondle his patient; the scoutmaster or school teacher, a father figure, who exploits that trust and molests a scout or a cub or a school pupil. "The foster home parent or half-way house superintendent who uses his or her position for personal sexual gain; the stepfather, the family friend, the uncle ... poachers in the sanctuary. "The Baptist Minister who abuses his position of trust and uses his words of wisdom as bait for troubled birds with broken wings. "It is despicable and when children are involved, it's even more sickening. Now, I want to go back to a case ... late yesterday we learned about it ... we learned of a Catholic priest who allegedly used his clerical robes as a bait for his flock. "Father Michael Glennon, an ordained Catholic priest, now calling himself a non-denominational priest, appeared in the Preston Magistrates' Court yesterday afternoon charged on numerous counts of child molestation. "He faced one count of buggery, an offence no longer on the statutes. It's been replaced by the offence of sexual penetration, but it does apply in this case because it applies to the priest as the offences allegedly were committed before the law was changed. "Father Michael Glennon was also charged with two counts of assault while attempting to commit buggery and nine charges of indecent assault on teenage boys. "Glennon, from Harold Street, Thornbury, is the governing director of the Peaceful Hand Youth Foundation and police have said five youths have made statements, alleging the offences that took place at the Youth Foundation at a camp called Caraglen at Lancefield during the period from 1975 to 1982. "Police say Glennon was forced to resign from practising within the Catholic Church after he was charged with sexual assault and jailed in 1978. "Father Michael Glennon appeared in the Melbourne County Court in 1978 charged with rape. However, when he pleaded guilty to indecent assault of a 16-year old girl, police did not proceed with the rape charge. "On the indecent assault charge, Father Glennon was found guilty and sentenced to the two years' jail with a minimum of 12 months to serve. The same priest was then charged in the Melbourne County Court in September of 1984 with two counts of rape of a 12-year old boy. On those charges he was acquitted. "The Father now calls himself a non-denominational priest. He's been quoted as saying his work in the Peaceful Hand Youth Foundation is involved with Aboriginal children. I know the question police are asking is how many other children may have been involved, how many other children may have been too scared over the years to come forward.

"And the question I have to ask, and I'm sure you, I'm sure that every reasonable, thinking, caring adult would also ask along with me, how does a man come to be able to continue to run a Youth Foundation with that background? How does a man continue to be able to take children into his care and take children in his care to youth camps, when he has a criminal record, a sexual criminal record involving juveniles? "Father Glennon was bailed in Preston Court on his own undertaking with a surety of $2000 and perhaps some of the questions will be answered when he appears again before the Melbourne Committals Court in April of next year ... the main question, is he still involved with the Peaceful Hand Youth Foundation?" Two days later, on 15 November, the appellant Hinch broadcast as follows: "On the programme on Wednesday morning I posed a question, a question I know that police are asking and I said then is a question that I think all reasonable, thinking adults in Victoria would be asking, especially parents. "The question is this: how can a priest, a non-denominational priest, Father Michael Glennon, how can he continue to hold senior office in a children's youth organization after being jailed on an indecent assault charge? "Now, I posed that question earlier in the week, as I revealed on the programme that Preston detectives had charged Father Glennon on 12 counts of molestation of teenage boys, dating back to 1975. "He appeared in Preston Magistrates' Court last Tuesday afternoon and has pleaded not guilty to all charges. Father Glennon is the governing director of the Peaceful Hand Youth Foundation, an organization based in Ballarat Street in Lalor. It's an organization incorporated with the Victorian Government, a voluntary organization with six branches, including a young offenders correction service ... well, having been in jail, he could give advice on that ... the Images Theatre Company and the karate club. "Up to 1000 children, aged six and upwards, are involved with those clubs. At a meeting, I am told, on Wednesday night, representatives of the parents' council, the teachers' council, the central executive and the black belt karate council, all expressed their unanimous support for and confidence in Father Glennon. "Glennon will remain as governing director of the Peaceful Hand Foundation and we have had that confirmed. We've confirmed that with the Foundation's secretary, Mrs. Vicki Dickerson. That is, despite a jail sentence for indecent assault, the man will stay in that position. "Father Glennon has told us he has made complaints to the State Ombudsman and to the Police Bureau of Internal Investigation. He told Pamela Graham, and I quote: 'I abhor that police did not attempt to show me any corroboration of ancient charges dating back to 1975; I abhor the fact that police confiscated all my personal diaries and the Foundation's photo albums, videotapes and files and information that would assist me to say where I was at what time and with whom, ' end quote. "All I can say is it goes back to the question, the question I said I know police are asking, a question, as I said, I think all reasonable, thinking adults will be asking in Victoria, how can a priest, a non-denominational priest, Father Michael Glennon, continue to hold senior office in a children's youth organization after being jailed on an indecent assault charge?"

On 28 January 1986, the Crown Solicitor's Office informed the solicitors for the appellants, Messrs. Ellison Hewison and Whitehead, that the Attorney-General intended to commence contempt of court proceedings against their clients. In response to their request, copies of the transcripts of the two broadcasts were provided to the appellant's solicitors.

On 14 February 1986, the first notice of motion returnable on 19 February, was served on the appellants' solicitors, who had agreed to accept service on their behalf.

On 19 February 1986 on the return of the notice of motion, McGarvie J by consent ordered that the hearing of the application be adjourned to 11 March 1986, and that the respondent (the Attorney-General) provide the appellants with further particulars as sought by them.

By letter dated 5 March 1986, the Crown Solicitor informed the appellants' solicitors that it was not intended to provide the particulars, adding that at the hearing of the applications the Attorney-General's case would be presented as follows: -

"Each broadcast as a whole and also both broadcasts together were likely to influence potential witnesses and jurors because: -

(a) They describe the accused in terms calculated to arouse hatred and contempt.

(b) They refer to the accused's previous bad conduct and convictions for like offences.

(c) They tacitly assume that the accused is guilty of the offences with which he was charged and other offences with which he was never charged.

(d) They constitute trial by media.

(e) The second broadcast recites a statement made by the accused to the respondents in relation to the merits of the charges against him."

On 7 March 1986 Glennon was charged with two counts of indecent assault on a female and one count of rape; he was bailed to appear at the Melbourne Magistrates' Court on 8 April 1986. The offences then charged were alleged to have been committed at Lancefield between 1 July 1982 and 30 November 1982.

On 11 March 1986 by consent it was ordered that the hearing of the applications be further adjourned until 24 March.

On the same day, namely 11 March, the appellant Hinch by his radio programme broadcast the following: "Late last year on this programme I asked a question: how can a Catholic priest, now calling himself a non-denominational priest, continue to hold senior office in a children's youth organization after being jailed on an indecent assault charge involving children? "The priest is Father Michael Glennon, aged 41, of Harold Street, Thornbury. He is the governing director of the Peaceful Hand Youth Foundation based in Ballarat Street, Lalor. It is an organization incorporated with the Victorian Government. In fact, the organization has received money in grants from the State Government. "The Peaceful Hand Youth Foundation, founded by Father Glennon, has six branches apparently, including a Young Offenders Correction Service, the Images Theatre Company and the karate club. Up to 1000 children, aged six and upwards, are involved in the clubs. The Foundation runs a camp for kids at Karaglen [sic] at Lancefield.

"Glennon was charged with sexual assault and jailed in 1978. He appeared in Melbourne County Court in 1978, charged with rape and indecent assault. Police did not proceed with the rape charge, and on the indecent assault charge he was found guilty and sentenced to two years' jail, with a minimum of 12 months to serve. "The same priest was then charged in the Melbourne County Court in September '84 with two counts of rape of a 12-year old boy, and on those charges he was acquitted. As I said last year, I know the question police have been asking is how many other children may have been involved, how many perhaps [were] too scared to come forward? "And the question I have to ask ... and I'm sure you, every reasonable thinking adult asks along with me ... how does a man come to be able to continue to run a youth Foundation, to take children into his care in youth camps? "Now, in November, at a meeting ... at a meeting of representatives of the parent's council, the teachers' council, the central executive and the black belt karate council, all expressed their unanimous support for Glennon, and the Foundation secretary, Mrs. Vicky Dickerson, confirmed that Glennon would remain as governing director of the Peaceful Hand. Mrs. Dickerson, it turns out, happens to be Mr. Glennon's cousin. "And the footnote, and where all of this is leading to this morning, last Friday Catholic priest Father Michael Glennon, founder and Governing Director of the Peaceful Hand Youth Foundation, was charged with rape and indecent assault. "Glennon was charged with one count of rape and two counts of indecent assault. He was granted bail on his own undertaking to appear in the Melbourne Committals Court on Tuesday April 8. My original question remains."

By an order made by the Chief Justice on 17 March 1986, the further hearing of the first notice of motion was adjourned to 10 April, conditional upon undertakings given by the appellants that, until the hearing and determination of the application or further order, they would not broadcast any matter relating in any way to the character or conduct of Glennon.

The applications made in the two notices of motion were heard together. The appellants, who were represented by separate counsel, sought adjournment of the proceedings until the criminal charges against Glennon had been finally determined. His Honour refused the applications.

Before this Court, both appellants contended that his Honour's refusal was a departure from the present practice followed in contempt proceedings. At the time when the hearing commenced in the present matter, committal proceedings against Glennon had not taken place. It was therefore uncertain on what, if any, charges he would be committed for trial, or when his trial on any of the charges would be held.

The practice of deferring the hearing of contempt proceedings until the related proceedings have been concluded is supportable on several grounds. First, by deferring the hearing, republication of the alleged offending statements resulting from reporting by the media of the contempt proceedings is avoided, and the risk of further possible prejudice or harm to related proceedings is thereby avoided. Secondly, the length of the interval between the publication and the hearing of the related proceedings may provide some indication whether the publication is likely to have, or has had, any effect upon the outcome of the proceedings. By deferring the contempt proceedings that period will be known and therefore might be used in a meaningful manner. Thirdly, depending upon the verdict or judgment, as the case may be, the final disposition of the trial might reveal that the publication did not have any influence on the proceedings. The outcome might therefore provide relevant, if not decisive, material supporting the conclusion that the publication was not likely to have had a prejudicial effect upon the Court's decision.

In this State the practice does not appear to have been previously considered or followed, although it was described by Hope JA in Attorney-General for New South Wales v John Fairfax and Sons Ltd (1985) 1 NSWLR 402, at p 405 as the present practice of the New South Wales Court of Appeal. In the course of his judgment in R v Hargreaves; Ex parte Dill [1954] Crim LR 54, Goddard LCJ stated: "If something were published which might prejudice a fair trial, there was no better way of assuring it than by asking for a writ of attachment, since the matter had to be brought up first to ask for leave, and, secondly, on the motion. Thus an obscure article was emphasised by being brought before the Court. Such motion should only be made by the Law Offices and then dealt with after the case came on."

His Lordship continued that, in the case then before it, the Court had allowed the motion to be heard before the trial because the matter concerned a magazine which was on sale at bookstalls. Again, in Re Sunday Express, The Times, 25 November 1953, p 11, his Lordship said: "I have often pointed out that this sort of application [for leave to apply for the issue of a writ of attachment] should not be heard until after the proceedings which are pending since, if the publication has in fact done any harm, the hearing of an application only emphasizes that harm."

The practice of adjourning the hearing of contempt proceedings until the conclusion of the related proceedings was followed in the Supreme Court of the Australian Capital Territory by Connor J in Re Whitlam; Ex parte Garland (1976) 8 ACTR 17.

In Attorney-General for New South Wales v John Fairfax and Sons Ltd, Hope JA (1985) 1 NSWLR 402, at p 406 stated his agreement with the Lord Chief Justice's observations and with a concession made by Counsel for the respondents to a summons for contempt, "that charges of contempt based upon the publication and material which may prejudice the fair trial of criminal proceedings should not (at least normally) be heard until after the conclusion of the related criminal proceedings. Whatever the practice may have been in the past, the media publicity attaching to contempt proceedings would undoubtedly add to the possibility of unfair prejudice in the criminal trial."

Yet there are strong reasons for not adopting such a practice. It is of the nature of contempt proceedings that at the time of publication the offending statement has a tendency to prejudice the fair trial. Whether in the end it has done so may not become known by the outcome of the relevant proceedings. The verdict, even if favourable to the accused person, might not reflect whether it was reached despite the publication. Furthermore, one purpose of contempt procedure is to preserve public confidence and the confidence of the accused in the administration of justice free from prejudice. By judicial determination of contempt proceedings before trial, a contemnor is deterred from republication of the same matter, and others tempted to do so might be deterred from publication of the same or like material prejudicial to the accused.

I accept that there might be particular circumstances when the interests of justice would be better served by holding contempt proceedings after the conclusion of related criminal proceedings. This was the course followed in R v Pacini [1956] VicLawRp 84; [1956] VLR 544. In that case the offending publications - newspaper photographs of the accused charged with murder with captions identifying him with the victim, and a radio broadcast reporting incriminating admissions of guilt allegedly made by the accused, and statements of police having brought investigations to a successful conclusion and of the arrest of the offender - were made two months before the hearing of the contempt proceedings. In the interval between the publications and broadcasts, the accused was brought to trial, pleaded guilty to a reduced offence and sentenced. There was therefore a combination of factors which justified the delayed hearing of the contempt proceedings, including the short period between the alleged contempt and the trial, and unknown factors whether at his trial the identity of the accused would be in issue and whether he would dispute the alleged admissions. In those circumstances contempt proceedings, if taken before trial, might have added prejudice by renewed publicity of the photographs and statements made during the broadcast. The timing of the contempt proceedings in Pacini's Case was therefore brought about by quite exceptional events. Yet in other circumstances deferral or delay of contempt proceedings might cause the fair trial of the related proceedings to be at risk of further prejudice by additional publication of similar material. It would seem from the parenthetic words "at least normally" in the cited passage from his judgment that Hope JA accepted that the practice might not have application in all contempt proceedings.

However, on the assumption that the practice might be followed in this State, the appellants' knowledge and conduct in the present case justified departure from any such practice. I refer to the events which followed the first two broadcasts and preceded the third broadcast. By the end of January 1986 the appellants, as a result of communication by the Crown solicitor to their solicitors and service of the first notices of motion, had knowledge that the Attorney-General intended to commence contempt proceedings. Again, from the Crown Solicitor's letter of 5 March 1986 the appellants' solicitors had information of the manner in which it was intended to present the Attorney-General's case that the first two broadcasts, individually and together, were likely to prejudice potential witnesses and jurors. Notwithstanding the appellant Hinch's denial of seeking or of recollection of having received, any legal advice before the third broadcast on 11 March, Pamela Graham, a journalist who works with him as an investigatory reporter, sought and obtained by telephone advice from his solicitors that the material relating to further charges against Glennon ought not to be broadcast. In his third broadcast, the appellant Hinch repeated the same matters concerning Glennon which the Crown Solicitor by his letter had indicated the Attorney-General would rely upon as being likely to prejudice the fair trial. In addition, at the outset of the hearing of the notices of motion counsel for the appellants announced to his Honour that the appellants would rely upon the defence that the broadcasts had been made in the public interest.

Consequently, having regard to those circumstances there was a risk that, until the contempt proceedings involving the defence of public interest were determined, the appellant Hinch would continue to publish by broadcasting the same or similar material concerning Glennon.

That risk might be thought to have been reduced by reason of the undertaking given by the appellants to the Chief Justice on 17 March. However, on 5 October 1984 Southwell J adjudged the appellant Hinch guilty of contempt of court arising out of several broadcasts made by him in breach of an order made by Brooking J restraining each of the appellants from broadcasting defined information. The first breach of the injunction was committed by the appellant Hinch three days after the making of the order. It appears that one of the defences taken by the appellants in those previous contempt proceedings was that the broadcasts were made in the public interest.

In the event of a further broadcast of similar material before the trial, the prejudice likely to accrue to Glennon might have exceeded the harm resulting from the publication of the contempt proceedings. It follows that, in my opinion, his Honour's decision to hear the contempt applications before the final disposition of any criminal proceedings against Glennon was justified.

It was argued on behalf of the appellants that the learned Judge ought not to have found that statements made in the three broadcasts constituted contempt of court and that his Honour ought not to have rejected their defences of the statements having been made concerning a matter of public interest.

Expressing his initial finding, his Honour stated that in his opinion each broadcast had a real and appreciable tendency from a practical point of view to prejudice listeners against Glennon and to influence the forthcoming committal and trial of Glennon in a manner adverse to him.

It is clear from his expressions that his Honour was mindful of the principles stated in John Fairfax and Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351, at pp 370 and 372, per Dixon CJ, Fullagar Kitto and Taylor JJ that jurisdiction to punish for contempt is exercisable "only if it is made quite clear to the Court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice", and that this involves finding in the offending material "a real and definite tendency to prejudice or embarrass pending proceedings". See also Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25, at pp 56, 99 and 166.

The required tendency is by definition a reference to the effect, in the present case, upon a criminal trial which will take place at some unknown future date. The tendency of the publication is not a matter capable of proof by evidence. Whether the contents of the broadcast would produce the required tendency involves consideration of the time when the publication was made, the size of the audiences which the broadcasts probably reached, the nature of the statements made, and the duration of their influence. Facts relevant to those considerations may be summarized as follows: -

First, the broadcasts were made immediately after Glennon had been charged and before committal proceedings had taken place. Secondly, they were addressed to approximately 200,000 listeners of whom 100,000 were expected to be within the metropolitan area. Thirdly, in each broadcast Father Michael Glennon was identified by name as the person charged. Fourthly, by the first and second broadcasts, it was made known to the listening public that Glennon was charged with sexual offences involving teenage boys, and by the third broadcast they were informed that Glennon was charged with rape and indecent assault. Fifthly, Glennon's record of previous convictions of sexual offences on teenage boys, indecent assault, rape of a 12-year old boy, his acquittal of similar charges, and the imposition of a two year term of imprisonment upon him for indecent assault was made public. Sixthly, listeners were informed of police suspicion that other children had been victims of sexual assaults committed by Glennon.

References to those matters carried the implication of the appellant Hinch's opinion that Glennon committed the several sexual offences for which he was charged and that he was therefore guilty. Moreover, it cannot be gainsaid that a potential juror's knowledge, gathered from the broadcast, of Glennon's prior convictions of sexual offences, similar to those of which he was charged, would be likely to prejudice seriously his fair trial. It was said of prejudice likely to be attracted to an accused person by public disclosure of his past criminal convictions by Moffitt P in Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143, at p 150: "The popular view of the correlation between persons guilty of committing present crimes and those who have committed earlier crimes, leads to the popular and deeply rooted belief that it is more likely that an accused person committed the crime charged, if he has a criminal record, and less likely if he has no record. Under the general law, however, the existence of a prior record was regarded as irrelevant in Stewart v The King [1921] HCA 17; (1921) 29 CLR 234; but in Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353, at p. 359, the court (consisting of Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ) considered the ground of exclusion not to be relevance, but "policy deeply rooted in principle" and quoted with apparent approval the words of Willes J in R v Rowton (1865) Le and Ca 520, at p 524; [1865] EngR 53; 169 ER 1497, at p 1506: 'The evidence is relevant to the issue, but is excluded for reasons of humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety-nine.' In a practical sense the problem is accentuated because juries are told in appropriate cases: Crimes Act, s412, and see McDonald v The King [1935] HCA 18; (1935) 52 CLR 739, that good character, and hence absence of prior convictions, should be considered on the question of guilt. Thus, it must be accepted that the law of this country, in its wisdom, recognizing the danger of a person being convicted not on the facts of the case but on his past record, not only rigorously excludes this material from the jury, but in its procedures recognizes the insuperable prejudice which arises from its admission. It regulates its procedures in an endeavour to ensure that an accused person will only be convicted by a jury unaware of past convictions. In Maxwell's case Viscount Sankey LC. considered that to allow a person charged to be asked about 'any previous conviction' would have the result 'that an old offender would seldom, if ever, have been acquitted'. "It follows from the foregoing that, after a person has been charged and before he has been tried, to publish his past convictions to a group of persons who may reasonably include jurors, is calculated to cause prejudice to his fair trial according to law, the prejudice being of the class regarded by the law as incapable of removal. As compared with revelation of prior convictions at the trial, a revelation by the news media prior to the trial is such that it will never be known whether the seeds of prejudice reach, and are remembered by, a person who becomes a juror. The publication gives rise to the unsatisfactory situation that it will never be known whether the trial has, or has not, been fair, a situation the law ought not to, and in my view does not, tolerate. The greater the public interest in the matter broadcast, and the more relevant thereto the reference to the prior convictions, the more likely will the attention of persons rest and remain upon the prior convictions."

His Honour also said, at p 152: "I think the conclusion can, and should be, arrived at that to publish on radio, television or in a newspaper that a man, then charged with a criminal offence, has past convictions, or has committed past crimes, or to detail them, has a tendency to prejudice the fair trial of the man charged. I find it difficult to envisage a case where such a publication would not be contempt of court, but certainly it is contempt in any case remotely resembling the present. To decide otherwise, would be to relegate to a secondary place, where it has never been placed by any authority, a fundamental principle of the general law, long accepted as basic and necessary to secure the fair trial of a person."

The appellants argued that at the time of the hearing of the notices of motion it was not known when Glennon would be tried and that, after a long interval between the broadcasts and the trial, witnesses and potential jurors would not be expected to recall what had been said of Glennon's criminal antecedents. There is authority supporting the appellants' contention that risk of prejudice will reduce as the interval between publication and the related proceedings increases: Attorney-General v News Group Ltd [1987] QB 1, at p 6, per Sir John Donaldson MR; at p 16, per Parker LJ; and at p 18, per Waller LJ. It has also been accepted that public recall of an assertion of criminal or scandalous conduct of a particular person is likely to be forgotten in the volume of daily publicity to sensational allegations given by the mass media: see the BLF Case, at (152 CLR) p 136, per Wilson J; R v Collins (1984) 15 A Crim R 148, at pp 164-5; and Attorney-General for New South Wales v John Fairfax and Sons Ltd. and Bacon (unreported, Court of Appeal (NSW) 20 December 1985).

It is not a matter capable of establishment by evidence - whether opinion or otherwise - that witnesses and potential jurors are likely at some future indefinite date to be influenced by publication of the previous convictions of a person charged with a criminal offence. Judicial satisfaction of the tendency of such a publication to prejudice is a matter of impression; such impression is based upon the nature and circumstances of the publication, the likely duration of its influence, and experience gained both as counsel and judge in the course of trials (civil and criminal), Royal Commissions, and other forms of inquiry. Having observed and listened to a witness and compared his evidence with a previous statement made by him or her, there are occasions - rare though they might be - when there is sound reason for concluding that the witness' evidence has been influenced by a third party. Again, a witness may adopt a suggestion made in leading form by a cross-examiner, a suggestion reflecting a view promoted by the media as one held and accepted by the public. However, in the BLF Case, at (152 CLR) p 59, Gibbs CJ expressed his view that it was no more than speculation that continuance of a public enquiry then in progress would influence witnesses in their evidence given in subsequent proceedings before the Federal Court. Mason J, at p 103, and Wilson J, at p 136, expressed similar views. On the other hand, Lord Reid in Attorney-General v Times Newspapers Ltd [1974] AC 273, at p 296 appears to have accepted that comments made in the course of active discussion of some question of public interest would be "likely to affect the minds of witnesses".

Nevertheless the law of contempt of court arising out of publication of material relating to a pending trial is based on assumption that potential jurors are likely to be infected with prejudice from such publication. The assumption, in my opinion, is an impression founded on relevant considerations and based upon the type of professional experiences to which I have referred. There are, for instance, occasions when a jury's verdict reflects public opinion of a particular matter as publicised by the media, more so than the weight of the evidence in the case.

The duration of influence of a publication is likely to depend upon the gravity of the matters disseminated. Some will remember the material for longer periods than others; yet recall of scandalous or criminal allegations is likely to be revived by, inter alia, legal proceedings.

The learned Judge described the statements contained in the three broadcasts as extremely prejudicial and improper, and unfair considerations to put before witnesses and potential jurors. Neither appellant disputed his Honour's opinion that: "The broadcasts, and each of them, would have influenced most listeners to conclude that Glennon was a despicable man, a dissembling priest, who corrupted young people after using his pseudo-clerical position to gain their trust. A strong feeling of hostility towards Glennon must, in my opinion, have been created. Reference is made as I said, to his prior conviction and jailing, to his prior acquittals on similar charges, and to at least the possibility that many other offences have been committed but never seen the light of day and it might be implied that such offences perhaps could involve aboriginal children."

In my view no basis for controverting his Honour's opinion existed.

It was contended, however, that the conclusion that the broadcasts had a real and definite tendency to prejudice the fair trial of Glennon required his Honour to find when the trial was likely to be held. Evidence before the learned Judge of the expected interval between the committal proceedings and the trial in relation to sexual offences under s45 of the Crimes Act 1958 and other offences, which are not subject to a time limit prescribed by statute, was not entirely satisfactory. His Honour, considered the issue, namely, whether s359A and s45 of the Crimes Act 1958 as amended applied to any of the crimes to which Glennon was charged, was not one for his resolution although he took into account the discussion in relation thereto. Nevertheless from that evidence it might have been concluded that the trial of Glennon could take place three months after the committal proceedings or as late as 18 months thereafter.

In some cases, because of the nature of the publication, the time between the publication and the trial might be material. On the other hand, a number of factors might render it impossible to make a finding when a trial is likely to come on for hearing. Such factors might include the number of witnesses, their availability at any given time, professional commitments of officers of the Director of Public Prosecutions, and the availability of the accused's counsel. In addition sickness of witnesses might cause adjournments of a trial from the fixed date of its hearing. Consequently, a finding by the learned Judge of the approximate time of the hearing of criminal proceedings might have provided a misleading basis upon which to decide whether the broadcasts were likely to produce the required tendency. Furthermore, I do not accept that decisions in other cases of the likely duration of influence of a prejudicial publication, predicted by taking into account the anticipated interval between committal proceedings and trial, provide guidance for the same purpose in other cases. Relevant facts indicating the probable period of influence include the nature and gravity of the allegations made by the publication, the identity of the person prejudiced, and the previous exposure of the public to similar allegations concerning similar types of persons.

His Honour expressed his opinion that: "The statements concerning a Catholic priest in Victoria will be likely to make a lasting impression upon the minds of those listening to the broadcasts, who are ordinarily reasonable members of the community, and perhaps especially upon the minds of those with strong religious beliefs, whether of Catholic or of some other persuasion. Again they would be especially likely to impress themselves on the minds of parents with children, or grandchildren, who are yet to run the gauntlet of growing up in modern teenage society."

Glennon's office in the Church, his criminal convictions, his acquittal of charges of sexual offences against teenagers, his position of trust as head of the Foundation, and the suggestion of additional sexual assaults and offences against unknown children warranted the conclusion that listeners' recall of the broadcast would endure indefinitely. In addition, the contents of the broadcasts attributed to Glennon such nefarious past conduct that a juror's recall of his previous criminal convictions and conduct would be likely to be revived by evidence, regardless of whether the trial took place three months or 18 months after the broadcasts.

Although Victorians are not free from publicity of scandalous behaviour by persons in all walks of life, it is not commonplace in this State to hear or read of a Roman Catholic priest or clergyman of any other denomination having a record of criminal convictions for sexual offences committed on children. Publication in this State of that type of information about a priest, defrocked or otherwise, charged with sexual offences would be unlikely to pass beyond recall of those who learnt of it either directly or indirectly from the broadcast. Furthermore, those exposed to the influence of references to Glennon's criminal convictions were unlikely to have been limited to listeners. The very nature of the information concerning criminal conduct on the part of a priest was so sensational that it was likely to have provoked some among the listeners to repeat to others what they had heard about Glennon's previous criminal conduct. Thus the tendency to influence might have extended to a large number of persons from whom potential jurors will later be drawn. Infection of the mind of one such juror with knowledge of Glennon's criminal antecedents would be likely to lead to spread to other jurors and thereby prejudice his fair trial. I therefore consider that Murphy J's finding that the broadcasts, as a matter of practical reality, possessed the required tendency was soundly based.

The claim of public interest advanced on behalf of the appellants was based on the well-known passage in the judgment of Jordan CJ in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd [1937] NSWStRp 22; (1937) 37 SR (NSW) 242, at 249:

"It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant."

This passage was approved in Attorney-General v Times Newspapers Ltd [1974] AC 273, at pp 296-7 by Lord Reid, and at p 319 by Lord Simon. The principle formulated by Jordan CJ was accepted in the BLF Case at (152 CLR) pp 56, 59-60, 74-5, 95-9, 133-4 and 175.

Statements in the judgment of Moffitt P in Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143, at pp 149-54 gave rise to subsequent discussion whether the principle of protection of freedom of speech has application where the related proceedings are criminal. In Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650 the Court accepted that it does and applied the principle to a published statement which related to criminal proceedings currently before the District Court. Hope JA, at p. 678, said: "The application of the principle involves a balancing of public interest in the due administration of justice by the law or by the court against the public interest in the ventilation of the question of public concern. It is clear that different considerations apply, in balancing these competing interests, between publications prejudicing civil trials and those prejudicing criminal trials. It is however difficult to see why the principle should have no application to criminal trials, and in my opinion, although it must be applied with caution, it is applicable in some cases."

This question, whether the principle applies to contempt where the related proceedings are criminal, was finally and recently resolved by the effect of the High Court's decision refusing special leave to appeal in Waterhouse v Australian Broadcasting Commission (unreported, 12 November 1986). The application arose out of dismissal by the Court of Appeal (NSW) of an appeal against the refusal of the primary Judge to restrain by injunction the ABC from presenting a television programme. The proceedings for injunction were brought by two plaintiffs, father and son; the claim for injunctive relief made by the first-named plaintiff is relevant in this connection. The basis of his claim was that the presentation of the programme would interfere with his right to a fair trial of pending criminal proceedings. The television programme was concerned with betting frauds associated with the running of a horse "Fine Cotton". The pending criminal proceedings against the first-named plaintiff arose out of his alleged complicity in the betting frauds. His complaints were that the programme carried an assertion that he was guilty of the crimes charged, and that the programme denigrated his character creating public prejudice against him thereby denying his right to a fair trial. Young J refused the application on the ground that any effect of the programme on a magistrate, judge or jury would not be sufficiently serious to constitute a contempt. The substance of his Honour's further conclusion was that in the circumstances of the case public interest in the discussion of the matters proposed to be televised outweighed public interest in the administration of justice. On appeal both Glass JA (with whose judgment Samuels JA agreed) and Mahoney JA found no error in the primary Judge's conclusion that the proposed programme did not possess the required tendency as a matter of practical reality to prejudice the first-named plaintiff's fair trial. Mahoney JA adverted to what he termed "the privilege of those who wish to do so to discuss matters which are of public interest", but without apparently deciding whether the programme fell within the principle. However, Gibbs CJ, Wilson and Dawson JJ, at the outset of their joint judgment refusing the special leave, stated that the primary Judge, "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 public discussion of matters of public concern is not stifled".

It is implicit in their Honours' statement that they accepted the principle of public discussion of matters of public interest is applicable where the related pending proceedings are criminal.

For the appellants it was submitted that central to the statements made during the broadcasts was the problem of those in the community indulging in child molestation, and that the problem is and has been in the past a matter of public interest and concern. They contended that the learned Judge ought to have found that the broadcasts were concerned with a matter of public interest and that on balancing the competing principles he ought to have held that public interest in freedom of speech prevailed.

For the appellant Hinch it was said that the matter of public interest discussed by him in his broadcasts was the prevalent and serious problem within the community of persons abusing their position of trust and authority by criminal conduct against vulnerable persons, that sexual exploitation of children by a person occupying a position of trust and authority was one form of the type of abhorrent abuse, that Glennon exemplified the type of person in authority, and that Glennon by reason of his criminal antecedents - both convictions and acquittals - ought not to continue in control of the Youth Foundation.

For the appellant company it was said that the matters of public interest discussed by the broadcaster were whether Glennon should continue in charge of the Youth Foundation pending his trial on charges of sexual offences against children; whether Glennon, with past criminal convictions of sexual offences committed upon children, should be entrusted with the conduct of a foundation involving children; and whether members of the public and those who might contemplate entrusting their children to the Foundation ought to be made aware that Glennon had been charged with criminal offences involving children and that he intended, while awaiting trial on charges similar to those of which he had previously been convicted, to continue in the office of managing director of the Foundation.

Without doubt the practices of child molesters and paedophilics have been the subject of growing concern in this State, and there has been considerable discussion directed to informing the public of the problem. There was evidence before the learned Judge that the appellant Hinch, by his previous broadcasts, had contributed to public awareness of the problem.

However, the problem of child molestation was not the subject of public interest discussed by the appellant Hinch in the broadcasts. From the contents of the statements, it is clear that the subject ventilated by the appellant Hinch was the situation of Glennon, with his background and criminal record, continuing to remain in a controlling and influential position within a youth organization.

By affidavit the appellant Hinch stated that his belief was that the situation was a matter of public interest and concern, and in the course of viva voce evidence he said that his hope was to cause Glennon's immediate removal from his position within the Foundation.

The situation of Glennon, continuing to control a youth organisation while charges of sexual offences against him were pending was in my view a matter of public interest to which the principle of freedom of discussion applied. The appellant Hinch might have publicly discussed the situation without infringing the law relating to contempt by limiting his publicised disclosures to identifying Glennon, the position of authority in the Foundation occupied by him, the charges of sexual offences preferred against him, and his continuation in his position of authority. In addition it would have been permissible for the broadcaster to have stated his opinion that Glennon should stand down or be suspended from his office until the determination of the pending charges.

However, the disclosures of Glennon's criminal convictions of sexual offences against children, his acquittal of similar charges, and police suspicion of him having committed additional and similar offences against unknown children were not "incidental and not unintended by-products" of the disclosures made by the broadcasts. Those disclosures were made deliberately by the appellant Hinch for the purpose of giving strength to his contention that Glennon was a person unfit to continue in his office of authority within the Foundation. His motive for doing so was not relevant to the question of whether the doctrine of balancing the need to safeguard the administration of justice and the need to protect freedom of speech.

In my opinion, therefore, Murphy J correctly found that the disclosures of Glennon's criminal record made by the appellant Hinch in the three broadcasts were not incidental but central to the discussions. Having made that finding, there was no occasion for his Honour to balance the competing public interests in the due administration of justice and in freedom to discuss a matter of public interest.

For the foregoing reasons, in my opinion, the appeal against conviction of the appellant Hinch fails. The argument advanced on behalf of the appellant company was in substance the same as that advanced by the appellant Hinch. It follows that the appellant company's appeal against conviction must also fail.

Fines and sentences I now turn to the appeals against sentence. By orders of the learned Judge, the appellant Hinch was fined $25,000 for contempt arising out of the first and second broadcasts, and he was sentenced to six weeks imprisonment for contempt committed by the third broadcast. The appellant company was fined $25,000 for contempt arising out of the first and second broadcasts, and $30,000 for the third broadcast.

It was submitted on behalf of the appellant Hinch that his Honour took into account irrelevant matters when fixing the amount of the fine and passing the sentence of imprisonment. The matters complained of included the likelihood that any fine ordered to be paid by the appellant Hinch would be paid by the appellant company. There was no evidence before his Honour that the appellant company had agreed or intended to do so. The fact that it had paid fines ordered against Hinch by the Family Court and that it had undertaken to pay his legal expenses incurred in these contempt proceedings did not provide evidence from which it could be inferred that the appellant company would follow the same course as it did in the previous proceedings, notwithstanding the strong suggestion that it might do so. Furthermore, it does not appear whether the learned Judge took into account the same matters when fixing the amount of the fine or when deciding to impose a custodial sentence on the appellant Hinch. In either event the fact that in these proceedings a third party might pay a fine ordered to be paid by the appellant Hinch was not relevant to the decision whether he should be sentenced to a term of imprisonment or fined, and if fined the amount of such fine.

A further matter complained of was that his Honour drew attention to losses of large sums of money resulting from juries having been discharged without verdict due to prejudicial publications made by newspapers and radio publications or by television presentations during the course of criminal trials. Discharge of a jury in those circumstances is made upon the decision of the trial Judge that the publication or presentation is likely to prejudice the fair trial of the accused. His decision is made upon considerations different to those relevant in proceedings for committal for contempt. It is reached without hearing the publisher, author or televiser, or consideration of any explanation for the publication. It is therefore a decision not based upon a finding that an alleged contemnor has been guilty of contempt. Furthermore, offending broadcasts bringing about the present contempt proceedings were made in significantly different circumstances to those publications or disclosures made during the course of trials. Consequently, the occurrence of jury discharges resulting from prejudicial publications of television presentations during the course of trials and financial losses thereby occasioned were not matters relevant to penalties to be imposed on the appellants.

Those irrelevancies having entered into the learned Judge's sentencing discretion, I consider that the fine ordered to be paid by the appellant Hinch and the sentence passed upon him should be set aside. It therefore becomes necessary to consider what penalties ought to be imposed upon him.

Each broadcast, considered separately, constituted a serious form of contempt. A listener might reasonably have concluded from any one of the broadcasts that a wicked priest called Father Glennon had in the past committed many unnatural sexual offences upon young children, for some of which he had been convicted and punished; that he was still in charge of a youth group; and that he has again committed the same sort of offences. Thus the broadcasts were in effect trials by media of a man charged with serious criminal offences. The contempts of court were very serious, having such highly prejudicial tendencies. The likely consequences to Glennon are even greater: the prejudice likely to accrue to him from the broadcasts is that he might wrongly be found guilty of and punished for offences which he has not committed. Effective measures to prevent such injustices to Glennon might require exceptional precautions to be taken at his trial.

The appellant Hinch, who is aged 41, is a very experienced journalist. He has used his professional talents and the facilities available to him as a broadcaster of public discussion programmes to support many worthy communal causes. That he is a man of good character, holding strong views about a variety of matters of public interest was verified by several responsible and respected citizens.

He, from his experiences as a newspaper reporter of court proceedings, knew that evidence of convictions of a person charged with a criminal offence is admissible during a trial only after strict observance of statutory requirements. He was aware that the gratuitous introduction of those matters into a trial might lead to discharge of a jury without verdict. Moreover, when making the broadcasts, he was aware of the highly prejudicial tendency of the statements he was making. But he took the view that in the interval between his public disclosures and Glennon's trial what he had said about Glennon's criminal convictions would have been forgotten.

In this judgment I have referred to the appellant Hinch's two previous convictions of contempt of court. His conduct giving rise to those former convictions differed from the statements broadcast by him which constituted contempt in the present proceedings. Nevertheless, his previous convictions for contempt of court evince that he has a disposition to place himself above the law when he considers his interests as a broadcaster might conflict with the law. It follows that, in my opinion, the penalty to be imposed upon the appellant Hinch in relation to the first two broadcasts ought to reflect in a meaningful manner the need for personal deterrence of him. The penalty should also give notice to others following the same occupation with opportunity to influence public opinion who are minded to indulge in trial by media that such conduct is outside the law and carries severe penalties.

A question which arose during this appeal was whether the provisions of Pt3 of the Penalties and Sentences Act 1985 apply to the power of this Court to commit a contemnor for contempt. In Morris v Crown Office [1970] 2 QB 114 the Court of Appeal held that similar provisions appearing in the Criminal Justice Act 1967 do not relate to the power at common law of a judge of the High Court to commit instantly to prison for contempt. Again, in Lee v Walker [1985] QB 1191 the Court of Appeal, applying Morris v Crown Office, held that the inherent jurisdiction of a Court to punish for contempt subsists and is not cut down by statutes dealing with imprisonment for crimes. The United Kingdom statute would appear to have been the model for the Victorian Penalties and Sentences Act. In addition the language of the Victorian Act, and in particular its purposes as stated in s1, indicates that the provisions of Pt3 apply to statutory provisions concerned with passing sentence. In my view, therefore, following the decisions of the Court of Appeal, the Penalties and Sentences Act 1985 has no application to the common law power of this Court to punish for contempt.

Taking into account all the matters to which I have referred, I consider that the appellant Hinch ought to be fined a substantial sum for contempt arising out of the earlier broadcasts. I would fix the amount of the fine at $15,000.

Matters to be taken into account in determining the sentence to be passed on him arising out of the third broadcast include those to which I have referred in connection with the earlier broadcast concerning Glennon. But there were additional circumstances which render his commission of that contempt more serious. Those include other matters to which I referred at the outset of this judgment, namely that before the third broadcast the appellant Hinch's solicitors were informed that a notice of motion for his committal for contempt of court would be issued and served and that the notice of motion was in fact issued and served. It follows that before making the third broadcast the appellant Hinch was aware that the law officer of the State of Victoria would submit to the Court that his statements concerning Glennon's criminal convictions and acquittals of unnatural sexual offences were made in contempt of court. Three weeks before the third broadcast, the hearing of the application to have him committed for contempt was adjourned to the very day when the appellant Hinch made the third broadcast. In that broadcast he published almost identical material concerning Glennon with the knowledge of the law officer's proposed submission. His announcement of three further charges of sexual offences preferred against Glennon together with restatement of his past criminal conduct and convictions added to the prejudice likely to accrue to Glennon from the first broadcasts.

Murphy J described the appellant Hinch's conduct as defiance. If that were an inaccurate description (and I do not consider it was), the appellant Hinch's conduct showed a high degree of arrogance; he disregarded the law officer's intended submission to the Court that the previous broadcasts constituted contempt, and he did not seek legal advice, which was available to him, about the material he was minded to publish in the third broadcast before making it. Thus, the third broadcast was made recklessly not caring that harmful consequences might accrue to Glennon by the prejudicial matters which he intended to and did publish.

For these purposes I put aside whether Pamela Graham told him before making the broadcast that his solicitors advised that the broadcast should not be made. Pamela Graham neither verified by affidavit having done so nor was she called as a witness. Had her evidence established that she had so informed him, I would have concluded that the sentence of six weeks' imprisonment passed upon the appellant Hinch by Murphy J was appropriate. Similarly, I do not take into account that his solicitors had been informed by the Crown Solicitor how the Attorney-General's case for contempt would be presented on

the application for his committal under the first notice of motion, the evidence before the learned Judge not having established whether he had knowledge of the contents of the letter.

However, the appellant Hinch's disregard of, if not contempt for, the law revealed by his conduct in making the prejudicial statements during the third broadcast, compel the imposition of a sentence designed to operate as a strong deterrent to him and others whose occupation enables them to influence public opinion from indulging in similar conduct. In my opinion these considerations called for punishment by the imposition of a custodial sentence. I would therefore sentence the appellant Hinch on the second notice of motion to a term of 28 days' imprisonment.

In reaching this conclusion I disregard that the Attorney-General announced to the learned Judge that he did not consider the contempts warranted a prison sentence to be passed on the appellant Hinch. In any event, the exercise of sentencing discretion by a trial Judge is based upon evidentiary material before him and submissions made by counsel for the accused. In this State the function of a prosecutor upon the hearing of a plea before sentence is confined to bringing to the attention of the trial judge factual matters proper for him to take into account, and relevant questions of law including any statutory maximum sentence upon convictions for the particular offence, and to correct any error of law or fact which might have emerged in the course of the plea or the reasons for sentence. The unsolicited opinion of a prosecutor as to the type of sentence to be passed might be seen by members of the community as a form of discrimination favourable to the accused by the executive arm of government. That, in my view, is a most undesirable situation.

By its notice of appeal, the appellant company did not appeal against the penalties ordered to be paid by it. On the hearing of the appeal, Mr. McPhee QC, who with Mr. Bingeman of counsel appeared for the appellant company, sought leave to amend its grounds of appeal by adding the following grounds: -

22. The penalty of a fine of $25,000 imposed by the learned Judge was manifestly excessive.

23. In imposing the penalty the learned Judge had regard to irrelevant considerations and failed to have regard to relevant considerations as to the penalty appropriate to impose on Macquarie Broadcasting Holdings Ltd.

The Court permitted Mr. McPhee to argue those grounds while reserving its decision whether to grant leave to amend as sought. For reasons to which I shall shortly refer, I would grant the leave sought.

In connection with the appellant Hinch's appeal against sentences, I referred to uncertainty whether the learned Judge when deciding to fine him for contempt arising out of the first and second broadcasts took into account that any fine ordered to be paid by him would be paid by the appellant company. For the same reason there is doubt whether his Honour, when ordering fines to be paid by both appellants, fixed the amount of each fine on the assumption that the appellant company would probably pay both fines. If he did so then in my view that was an irregularity which entered into the exercise of his discretion when fixing the amount of the fine to be paid by the appellant company. I also referred to his Honour's comments concerning monetary losses resulting from discharge of juries without verdict caused by prejudicial publications made by the media during the hearing of criminal trials. Those comments were not relevant to the penalty to be suffered by the appellant company.

There is a further matter which has caused me to conclude that the fine ordered against the appellant company under the first notice of motion ought to be set aside. The evidence did not establish whether before the first and second broadcasts the appellant company was aware of the appellant Hinch's intention to make statements concerning Glennon's past criminal conduct and convictions and suspected similar criminal conduct. It seems that in the day to day presentation of his broadcasts the appellant Hinch was given wide discretion concerning matters which he discussed. This was due to his programmes being concerned with contemporary matters of public interest, some of which arise at short notice, and to the policy of the company that broadcasts should not be defamatory or constitute transgression of the laws of contempt of court. The services of the company's solicitors to advise whether a proposed broadcast might breach the law were available to the appellant Hinch as well as to other announcers employed by it.

Furthermore, a matter to which some weight ought to be given was that the appellant company had never previously been convicted of contempt of court arising out of a broadcast.

I consider that the learned Judge was correct in fixing equal sums for the fines ordered to be paid by both appellants under the first notice of motion. I would therefore order that the appellant company be fined $15,000 in respect of the first and second broadcasts.

The circumstances existing immediately before the third broadcast were significantly different from those prevailing before the first and second broadcasts. The appellant company, by service upon its solicitors of the first notice of motion, was put on notice that any further broadcast of similar material concerning Glennon might constitute contempt. Yet there was no evidence that, after the service of the first notice of motion, the appellant company gave instructions to the appellant Hinch not to broadcast any further matters relating to Glennon's past criminal conduct and convictions, or that any measures were taken by the company to prevent the appellant Hinch from repeating such material. The circumstance of the then general manager of the radio station, Brian Henry White, having resigned his appointment on 7 March and having ceased his engagement with the station on 11 March did not explain why the company omitted to take any effective steps to avoid republication of the offending material.

The appellant company was under a high duty to prevent its broadcasting equipment from being used to publicise material constituting contempt of court. It failed in that duty with consequences unacceptable to the law. The penalty imposed upon the appellant company ought to be such as to deter it and other proprietors of radio stations from permitting broadcasts likely to prejudice the fair trial of a person accused of a criminal offence and from omitting to take proper precautions to prevent such broadcasts.

For these reasons, on the second notice of motion, I consider that a fine of $25,000 ought to be imposed on the appellant company.

Nicholson J: The facts relevant to this appeal have been fully summarized in the judgment of Kaye J. and it is unnecessary for me to repeat them.

Although the appellants' notices of appeal list numerous grounds, the argument before this Court proceeded upon three broad grounds as to whether the appellants were properly convicted of contempt. It was also argued that if a contempt was committed, the penalties imposed by the learned trial Judge were excessive.

Dr. Pannam QC, who appeared for the first appellant Hinch, argued that the motions for contempt should not have been heard and determined by Murphy J at all, but should have been adjourned for hearing and determination after the completion of the criminal proceedings against Father Glennon. He said that if this contention was accepted by the Court then the Court should simply uphold the appeal on this ground and set aside the convictions, leaving it to the Attorney-General to take further proceedings should he see fit.

This argument was put to Murphy J and rejected by him, for reasons which do not appear from his judgment. However, I gather that the matter was the subject of discussion and a ruling not forming part of the appeal book.

In support of his argument Dr. Pannam referred to what he said was an established rule of practice in the Australian Capital Territory, New South Wales and England, but which does not appear to have hitherto been the subject of judicial consideration in Victoria, whereby contempt proceedings of this kind may, and should be, instituted promptly following the alleged contempt, but are thereafter adjourned (subject to appropriate undertakings or restraining orders) until after the conclusion of the relevant criminal proceedings. I should mention that in the present cases an undertaking was given by both applicants before the Chief Justice on 17 March 1986 not to broadcast any matter relating in any way to the character or conduct of Father Glennon until the hearing and determination of the notices of motion.

In support of his submission Dr. Pannam referred to and relied upon the cases of Attorney-General for New South Wales v John Fairfax and Sons Ltd (1985) 1 NSWLR 402; Re Whitlam; Ex parte Garland (1976) ACTR 17; R v Hargreaves; Ex parte Dill [1954] Crim LR 54; Re Editor of Sunday Express, The Times, 25 November 1953; Borrie and Lowe, Law of Contempt, 2nd ed. p 342; Halsbury's Laws of England, 4 ed., vol. 9, para. 23.

Dr Pannam said that there were two reasons for the adoption of this rule of practice, these being (1) that any risk of prejudice to the accused person in the criminal proceedings will be exacerbated by any reporting of the contempt proceedings and (2) so far as the alleged contemnor is concerned it is important that all of the facts relating to any consequences, or lack of them, be before the Court, these being relevant both to the question whether any contempt has been committed, and the determination of an appropriate punishment.

The authorities to which Dr. Pannam referred would appear to amply support both the existence of the rule of practice and the first reason advanced by him for its adoption. In Attorney-General for New South Wales v John Fairfax and Sons Ltd. Hope JA, with whom Samuels and Mahoney JJA concurred, said, at p406, after quoting passages from the two judgments of Lord Goddard referred to by Dr. Pannam: "I agree with the observations of Lord Goddard and with the concession by counsel for the claimants in the present application that charges of contempt based upon the publication of material which may prejudice the fair trial of criminal proceedings should not (at least normally) be heard until after the conclusion of the related criminal proceedings. Whatever the practice may have been in the past, the media publicity attaching to the contempt proceedings would undoubtedly add to the possibility of unfair prejudice in the criminal trial. However, the question of time for the initiation of the contempt proceedings is another matter. It seems unarguable that, were it not for the potential effect of publicity flowing from them on a related criminal proceedings, there should be no delay in their initiation. The alleged contemnor should be left in no doubt that proceedings will be taken against him."

In my view there is much to be said for the adoption of this practice in Victoria for the reasons given by Lord Goddard and Hope JA. It would be a rare case where the need for speedy determination of the contempt proceedings outweighed the undesirability of the contempt, if it be a contempt, being further publicized by reports of the contempt proceedings. Indeed, this case provides an example in that the remarks of Hinch were initially conveyed only to those persons who happened to be listening to station 3AW on the days in question. However, as a result of the hearing of the proceedings before Murphy J and before this Court, those remarks have been widely publicized by all sections of the print and electronic media on numerous occasions whilst Father Glennon still awaits trial.

The fact remains, however, that Murphy J did determine to proceed with the hearing and albeit that I doubt that he should have done so, it seems to me that the possible detrimental effect upon Father Glennon's trial of his having done so provides no reason for vitiating his orders, if otherwise correctly made. The appellants have no interest in the outcome of Father Glennon's trial or as to whether it has been detrimentally affected, and have suffered no injustice by having these proceedings determined if it has been detrimentally affected.

In my opinion the only basis upon which Murphy J's failure to adjourn the proceedings could have a vitiating effect would be if there was any substance in what Dr. Pannam said was the second reason for the adoption of the rule of practice of adjourning such proceedings, that is the importance of all of the consequences of the alleged contempt being before the Court at the time that the matter is dealt with. Dr. Pannam was able to point to nothing in the authorities which supported this contention and I consider such authority as bears upon the point to be against it. In Attorney-General for New South Wales v John Fairfax and Sons Ltd. and Bacon (unreported, 20 December 1985) Samuels JA, in considering the issue of the effect of lapse of time between the alleged contempt and the trial, considered that the actual time that elapsed between the two events was irrelevant, the probable timetable at the date of publication being the relevant matter. So also did McHugh JA citing Ex parte Auld; Re Consolidated Press Ltd [1936] NSWStRp 42; (1936) 36 SR (NSW) 596, at pp 598-9, per Jordan CJ In R v Pacini [1956] VicLawRp 84; [1956] VLR 544, at p 547 Lowe J said: "The tendency of the publication must be judged at the time of publication and is not determined by the fact that for some reason no harm has resulted from the publication." See also R v David Syme and Co Ltd [1982] VicRp 16; [1982] VR 173.

It is thus apparent that the question as to whether or not a contempt has been committed is a prospective one, to be determined at the time of publication. It would seem to follow as a matter of logic that questions of penalty should also be determined, based upon the gravity or otherwise of the alleged contempt at the time of publication and not upon the actual consequences of it. In any event, apart from consequences such as the delay of a trial or a change of venue resulting from the contempt, it is difficult to see what other consequences would become apparent subsequent to the trial of the accused person. Acquittal or conviction could never give rise to an inference that the same had been brought about by reason of the contempt or that the contempt had any influence in bringing about such a result. Accordingly, I have no hesitation in rejecting the argument advanced by Dr. Pannam based upon Murphy J's refusal of an adjournment of the proceedings.

I now turn to the second broad ground of attack upon his Honour's judgment, which was that the statements broadcast by Hinch did not, as a matter of practical reality, have a real and definite tendency to interfere with the due course of justice in relation to the charges against Father Glennon.

It is in a sense difficult to consider this ground independently of the third broad ground relied upon by the appellants which was, that even if the statements broadcast by Hinch did have the required tendency, no contempt was committed because they were made at a time and in circumstances where the public interest in having such an important subject ventilated was on balance the dominant interest to be protected. It was this latter aspect upon which particular reliance was placed by Mr. McPhee QC who appeared for the second-named appellant.

The grounds are entwined because the question of the anticipated delay between the time of publication of the alleged contempt and the time of trial is relevant to both. Nevertheless, it seems to me that, unless the court is first satisfied beyond reasonable doubt that the publication in question is capable of having and does have as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case, the question of the balancing effect of the public interest cannot arise, because if it does not have that tendency, there can be no contempt. It may be that such a consideration lies behind the statement of Gibbs CJ in the course of his judgment in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25, at p 60 where his Honour said: "The conclusion reached by the Federal Court was that the adverse effect of the continued public proceedings of the royal commissions upon the judicial proceedings in that court outweighed the public interest involved in having the proceedings of the Commissions continued in public. If their Honours considered that they had a discretion to weigh one consideration against another, and to make a discretionary judgment as to whether a contempt had been committed or was likely to be committed, they were mistaken. The balancing of interests which is mentioned in Attorney-General v Times Newspapers Ltd [1974] AC, at pp 294, 296, 301, 319, is done by the law in formulating the principle to be applied, and not by the court in deciding a particular case. The resulting principle requires that the court be satisfied that there is a real risk that the material alleged to be a contempt will interfere with the administration of justice in pending proceedings before it can hold that a contempt has been committed or is threatened. The discretion of the court lies in dealing with a contempt, not in deciding whether a contempt has been committed. The jurisdiction to punish as a contempt something otherwise lawful is exceptional and drastic and must be exercised with great care. The court must, if possible, be even more cautious in granting an injunction to restrain an apprehended contempt."

The last portion of this passage would seem to suggest that questions of public interest are taken into account in determining whether or not to punish a contempt.

Before dealing with either ground it is necessary to determine the proper approach for an appellate court to take. The Solicitor-General, who appeared for the Crown, contended that before any ground could be considered it was first necessary for the appellants to demonstrate error on the part of the learned trial Judge because, unlike proceedings in the New South Wales Court of Appeal, this matter comes before the Court as an appeal. This contention must of course be tempered by the fact that in proceedings of this sort the principle laid down by the High Court in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, at p 551 is applicable: "in general an appellate court [hearing an appeal from a judge sitting without a jury] is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."

In Martin v Option Investments Pty Ltd [1982] VicRp 45; [1982] VR 464 Starke ACJ, with whom Crockett and McGarvie JJ agreed, after referring to the above case pointed out that, where a judge makes a finding of fact which depends entirely or in part on his observation of the demeanour of the witness and his manner of giving evidence, the court of appeal will not reverse such a finding.

In the present case I consider that the only findings by his Honour which can possibly be regarded as falling within the latter category are such of his findings as were dependent upon his observations of Hinch in the witness-box and that by and large this Court is in just as good a position as his Honour to consider, for example whether the statements broadcast by Hinch did have a real and definite tendency to interfere with the due course of justice, or to consider the extent to which the public interest affords a defence or operates to prevent the statements being regarded as a contempt.

Further, as hereafter appears, I am satisfied that the learned trial Judge did fall into error.

The appellants' submissions on both the second and third grounds depended heavily upon the question of the lapse of time between the dates upon which Hinch made the relevant broadcasts and the anticipated date of trial. This was not the subject of any finding by his Honour who dealt with the matter as follows: "The submission that the trial of Glennon might be many months away, when it was said that the effect of the broadcasts, if any, would be dimmed! Debate ensued whether the provisions of s359A and s45 of the Crimes Act 1958 as amended applied to these crimes or to any of them, so that Glennon's trial would, in the normal course, be required to proceed within three months of his committal. This issue need not I think be resolved by me, although I have regard to the discussion. "It seems clear that the committal itself would in the normal course take place in the relatively near future, and it is, of course, as a matter of law, as at the date of the broadcasts in question that the issue of likely prejudice of a real and substantial nature must be judged: see R v Pacini [1956] VicLawRp 84; [1956] VLR 544, at p 547. "Often the time factor is of much importance when considering whether in fact there is a real and appreciable likelihood that the material the subject of complaint will influence the forthcoming trial. "In the present case I am satisfied beyond reasonable doubt that for many potential jurors and for all witnesses there was a real and appreciable risk that in fact the broadcasts - especially the first and third broadcasts- would be likely to prejudice the fair trial of Glennon this 'ordained Catholic priest, calling himself a non-denominational priest'."

His Honour went on to distinguish Bacon's Case and Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650.

It may be, and although his Honour did not say so explicitly, I think it is to be inferred, that the reason why he did not make a finding as to the lapse of time in the present case, was because he was of the view that the likelihood of potential jurors and witnesses remembering and being influenced by details of prior convictions and charges of sexual offences of a Catholic priest charged again with unnatural sexual offences was such as to have the necessary tendency to interfere with a fair trial of Glennon, whenever the trial may be held (assuming, as was the fact, that there was no reason to suppose that the trial would be the subject of extraordinary or unusual delay). His Honour referred to the size of Hinch's listening audience, the fact that many of the audience would be women who his Honour said now perform a good deal of jury service, the popularity of interview and talkback programmes as providing a source of information and gossip, and the fact that the Glennon broadcasts contained many of the ingredients of popular scandal which would be bruited abroad, as factors distinguishing this case from cases such as Bacon's Case and other New South Wales cases. It seems to be implicit in his Honour's finding that all of these factors meant that the lapse of time between the broadcasts and the trial was not a relevant factor in this case.

If this was his Honour's view, then I find myself unable to agree with him. The authorities make it clear that the probable lapse of time between the making of the statement complained of and the time of trial is a most material factor, albeit not the only factor to be considered: see Bacon's Case, at pp 22-4, per McHugh JA where the relevant authorities are cited and see also Waterhouse v Australian Broadcasting Commission (unreported, 29 October 1986), per Young J. The latter decision was upheld by the New South Wales Court of Appeal on 6 November 1986 and special leave to appeal to the High Court was refused shortly thereafter. I consider that it must always be a relevant factor to determine the probable length of time which is likely to elapse between the publication of the alleged contempt and the trial said to be affected in considering whether the statement complained of has the necessary tendency to interfere with the trial in question. Accordingly, I consider that in so far as the learned trial Judge did not do so, he fell into error.

A factor which may have influenced his Honour in making no finding as to the anticipated lapse of time between the broadcasts and trial was his finding that Hinch's statements put prejudicial, improper and unfair considerations before witnesses as well as potential jurors. In this regard his Honour said:

"I think that it is also likely that witnesses wavering in their resolution as to any value judgment that they might have to make concerning the facts, or entertaining any doubts as to his or her testimony, would be stiffened and fortified adversely to Glennon by the knowledge of the facts of his prior criminal history as stated by Mr. Hinch. They would be far more likely to jump to conclusions."

It should, of course, be remembered that at the time that Hinch made his broadcasts, a date for the hearing of the committal proceedings against Glennon had been set for April 1986. The committal did not, in fact, proceed on that date and was not heard until September 1986.

If this finding of his Honour was correct then it might be said that the anticipated lapse of time until trial was not material, because the effect on witnesses would be anticipated to occur regardless of when the trial was held and that, in any event, it may well be that some or all of them would have been called upon to give evidence at the committal hearing.

This finding was criticized by counsel for the appellants as being speculative. With respect to his Honour, I agree with this criticism. In Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25, at p 136 Wilson J said: "With respect to the effect of publication on potential witnesses, the position could be different. It may be that the publication of material which tends to affect the attitude of witnesses and so influence their evidence will constitute a contempt: Times Newspapers Ltd [1974] AC, at p 297. But the tendency must be established." (My emphasis.) See also Gibbs CJ, at p. 59 and Mason J, at p 103.

Wilson J went on to say that the requisite tendency had not been established in that case for a number of reasons which included factors such as the uncertain degree and content of media coverage, the range and growth of media coverage leading to transcience in the public mind, the fact that there were no particular persons who were liable to be affected and the absence of any contemporaneity between the publication and the hearing.

In the present case it is true that there presumably were particular persons who might be liable to be affected, namely those witnesses to be called at the committal or trial and that, so far as Hinch knew, a committal hearing was to proceed in April. Such witnesses would presumably consist of police witnesses, who would know of Glennon's prior convictions in any event, and who could hardly be thought to be affected by Hinch's broadcasts, and the young persons against whom the offences were alleged to have been committed and, perhaps, parents or friends to whom complaint was made. It may well be that some or all of these persons would have become aware of Glennon's antecedents by word of mouth regardless of Hinch's broadcasts. However this may be, all of these persons would be aware that Glennon was charged with multiple offences involving themselves and other persons and, in my opinion, it would be speculative in the extreme to conclude that the additional knowledge of Glennon's earlier conviction and acquittal on similar charges would be likely, as a matter of practicality, to interfere with the way these witnesses would give their evidence or with the content of their evidence. I, accordingly, find myself unable to agree with his Honour's conclusion in this regard.

The authorities also make it clear that any effect upon the Magistrate conducting the committal hearing is also to be disregarded. See Bacon's Case, at p 20, per McHugh JA and the authorities there referred to. Accordingly, the necessary tendency to constitute a contempt if it exists at all must, in my opinion, relate to the effect of the relevant statements upon eventual jurors at the trial, and an essential element in making a finding about this is to make an assessment as at the time of the making of the broadcasts by Hinch of the probable lapse of time until trial. Since his Honour did not do this it is, I think, necessary for me to arrive at my own conclusion concerning this matter.

A matter relevant to this question is the fact that on 7 March 1986 Glennon was charged with counts of rape and indecent assault and was bailed to appear at a committal hearing on 8 April 1986, which was the date originally fixed for the committal hearing of the other sexual offences with which he had been charged in November 1985. S359A of the Crimes Act 1958 provides that the trial of a person charged with rape must commence within three months of the date of committal, but enables a Judge of the Supreme Court to extend the time by successive periods of three months and it is, in fact, common for this to be done. Regulations also require that in all other cases a presentment be filed within nine months of the date of committal and a trial be held within 18 months thereof, but these times are capable of extension and, again, frequently are extended. There was apparently some debate before his Honour as to whether these provisions applied to all or any of the offences with which Father Glennon was charged and it may well be that they do not, having regard to the dates upon which they are alleged to have been committed. The matter was not argued before this Court and, like his Honour, I do not find it necessary to determine the question. I have little doubt that the prosecution would have proceeded with regard to the possible existence of these requirements and I also have little doubt that some extension of time would have had to have been obtained in relation to the rape charges if the law required it.

At the time that Hinch made his first two broadcasts the committal hearing was some four months away, but at the time that he made the third broadcast on 11 March the committal hearing was slightly less than a month away. Evidence was given to his Honour from an officer of the Director of Public Prosecutions having particular responsibility for the handling of charges of rape, that the earliest that such charges would come on for trial would be approximately three months after committal, but the period might extend as long as 12 months. Having regard to the fact that Glennon was not in custody at the relevant time, and that this situation was likely to continue until trial, the trial would not have been expedited as it would have been had he been in custody. Further, having regard to the multiplicity of charges and the number of complainants, I would think it not unreasonable to assume that the trial would take some time to prepare and the fixing of a date suitable to all witnesses would be difficult. In all the circumstances and having regard to the evidence given to his Honour, I would think that the probabilities suggest a gap of between six and nine months between committal and trial. This means that at the time Hinch made the November broadcasts a gap of at least ten months could have been anticipated before trial. Because of the laying of fresh charges in March I would have thought it probable at the time of Hinch's third broadcast that the committal hearing would be adjourned for some months which, again, suggests a gap of at least ten months until trial. For the purpose of making these estimates, I have consciously ignored the reality of what has taken place in relation to Glennon's prosecution because of the need to approach the matter upon the basis of the probabilities at the time that the broadcasts were made, but I note from material before the Court that the committal hearing in fact did not take place until September and that no date for trial has, as yet, been fixed, so that it seems that these estimates have not been proved to be wrong by the events that have occurred.

I therefore approach the matter upon the basis that at the time of the relevant broadcasts it could reasonably have been anticipated by Hinch that a minimum of ten months would probably elapse prior to trial.

Before dealing with the substantive issue it is, I think, necessary to identify the matter that constitutes the alleged contempt. I am of the opinion that it must be confined to the reference by Hinch to Glennon's prior conviction and acquittal in relation to charges of sexual offences against young persons and to the fact that he had been in gaol for such offences and possibly to the inference that Glennon may have committed other offences with which he had not been charged. The Solicitor-General sought to argue that the broadcasts contained an element of prejudgment on the part of Hinch and constituted an attempt at trial by media and a general character assassination of Glennon. I do not agree with these submissions although I agree that they did contain prejudicial matter of a general nature as well as the reference to Glennon's antecedents. However, I am satisfied that the purpose of the broadcasts and their effect was, as Mr. McPhee argued, to draw public attention to the fact that a priest with antecedents involving sexual offences against young persons, who had been largely disowned by his church, was continuing to conduct a religious foundation involving large numbers of children whilst awaiting the determination of numerous charges alleging further sexual offences against children. If the broadcasts had contained no reference to Glennon's antecedents I would have no difficulty in finding that there was no contempt, bearing in mind the likely lapse of time prior to trial.

Because of the inclusion of Glennon's antecedents it is, I think, unarguable that this would have had a real tendency to prejudice potential jurors and would constitute a contempt if broadcast in sufficient proximity to the trial to have this effect. The question is as to whether the passage of ten months between publication and trial would so dim the recollection of potential jurors to whose attention the broadcasts came, that there was no real tendency for the prejudicial matter contained therein to have a detrimental effect upon the trial. As Moffitt P said in Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143, at p 149: "It is one of the most 'deeply rooted and jealously guarded principles of (the) criminal law' that evidence of prior convictions or crimes shall not be admissible on the trial of a person's guilt: Maxwell v Director of Public Prosecutions [1935] AC 309. If any additional authority is needed to establish the hallowed place in the common law which this rule occupies, reference can be made to Makin v Attorney-General (NSW) [1894] AC 57; Burrows v The King [1937] HCA 56; (1937) 58 CLR 249 and Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353. Even if a jury should come accidentally to know that a man accused has past convictions, this is usually regarded as so calculated to cause a persisting prejudice as to invalidate the trial thereafter: R v Firth (1938) 26 Cr App R 148; R v Knape [1965] VicRp 63; [1965] VR 469. Even where judges or magistrates have to try an issue of guilt, it has, at times, been considered that procedure should be avoided where a record of prior convictions is seen before a decision upon guilt is made."

His Honour went on to doubt the application to criminal proceedings of the well known principle enunciated by Jordan CJ in Ex parte Bread Manufacturers Association; Re Truth and Sportsman Ltd [1937] NSWStRp 22; (1937) 37 SR (NSW) 242 and after referring to the principle that a statement may not be a contempt if made at a time remote from trial and after referring, inter alia, to Davis v Baillie [1946] VicLawRp 76; [1946] VLR 486 said, at p 152: "Whatever views may be taken about the other matters referred to by Fullagar, J and whatever other compromises there should be in favour of giving information on a matter of public interest (a matter not necessary here to embark upon) I think the conclusion can, and should be, arrived at that to publish on radio, television or in a newspaper that a man then charged with a criminal offence has past convictions, or has committed past crimes, or to detail them, has a tendency to prejudice the fair trial of the man charged. I find it difficult to envisage a case where such a publication would not be contempt of court, but certainly it is contempt in any case remotely resembling the present."

If the views expressed by Moffitt P in the latter passage are correct, there would seem to be little doubt that the present broadcasts constituted a contempt, whenever made.

In the 1985 Willesee Case Hope JA, in discussing Moffitt P's remarks distinguished that case from the case before him upon the basis that it involved a reference to a previous crime having been committed by an identified person who stood charged with a specific offence, which is, of course, this case also.

Bacon's Case, however, was a case of an identified person charged with a specific offence at the time of the relevant publication, which McHugh JA found contained reports of allegations against the man charged of murder, attempted murder, supplying drugs to criminals, suborning witnesses and perverting the course of justice: p 7. His Honour found that the article in question did not suggest that the allegations were true, but did convey the definite impression that they had not been and should be properly investigated, and that there may be substance in them. His Honour found that at the time of the publication a period of 17 months was likely to elapse before trial and that, as a matter of practical reality, the publication did not have a tendency to interfere with the fair trial of the man in question. In addition to the lapse of time his Honour took into account the fact that allegations of a similar type had been made over a considerable period about the same person and that the circulation of the relevant newspaper was some 26,000, which he found meant that it would be unlikely to come to the attention of potential jurors in Sydney and that no reference to the charges was made in the relevant article. It is also true, as the learned trial Judge pointed out in this case, that there may have been other distinguishing features such as the fact that such allegations about New South Wales' policemen are rather more common than the allegations made in this case about a Catholic priest and might be less likely to stick in the minds of potential jurors although, as hereafter appears, I do not accept this latter distinction.

Nevertheless, the decision appears to me to represent a considerable shift in approach by the New South Wales Court of Appeal from that expressed by Moffitt P, particularly as to the effect of the effluxion of time. It is true that Moffitt P conceded this principle but he was prepared to give it only limited operation, not extending to a case where a reference was made to prior offences by an identified person charged with a specific offence. If comparison is made between the statement complained of and those of Hinch without regard to issues of circulation and prior publicity, the only real distinction would seem to be that Hinch referred to a specific prior conviction and acquittal, whereas in Bacon's Case, the report was of allegations of prior offences which did not necessarily suggest that they had been committed, although it did suggest that they might have been. The allegations were, nevertheless, of very serious offences and I would be inclined to doubt that a potential juror hearing of them would draw the above distinction, particularly after some months.

A relevant factor referred to by McHugh JA in Bacon's Case which is also common to this case is that it is legitimate for a court to take into account the effect on juries of coverage in the mass media of other sensational events: see pp 25-6 of his Honour's judgment where the authorities are set out and see also Waterhouse's Case, at p 5, per Glass JA. In the present case this principle would tend to be more favourable to Hinch than it was in that case because I should have thought that words spoken in the course of a sea of words on radio would be more likely to have a transient effect than the printed word or words accompanied by a pictorial image as would be the case on television.

The recent decision of Young J in Waterhouse's Case and the judgments of the New South Wales Court of Appeal in that case again seem to indicate a shift in approach from the position adopted by the Court of Appeal in the 1980 Willesee Case.

In Waterhouse's Case one of the plaintiffs was charged with numerous offences arising out of an incident involving a horse named "Fine Cotton", the essence of the allegations being that the plaintiff had made wagers on "Fine Cotton" dishonestly because he had the advantage of knowing that there had been a substitution of a better performed horse. The stage that the proceedings had reached when the matter came before Young J was that a committal hearing was part heard and due to resume on 17 November 1986. The Australian Broadcasting Commission proposed to telecast a programme concerning the plaintiff to an audience of approximately 210,000 people, which would be twice repeated after its initial screening, and the plaintiff sought to restrain it from doing so. Young J found on 29 October 1986 that if the plaintiff was committed for trial the trial would not be heard until about November 1987 or later. It is not entirely clear from the judgments of Young J or the Court of Appeal precisely what the nature of the allegations against the plaintiff were that were made in the programme, but it appears from the judgment of Glass JA in the Court of Appeal that the Fine Cotton incident was referred to as a "bungled ring-in", in that following an inquiry into it by the Australian Jockey Club the plaintiff had been "banned from the world's racecourses". We were informed by counsel that the programme also referred to a number of other discreditable incidents involving the plaintiff, including allegations that he had been involved in the drugging of a dog, the conduct of an unlawful nightclub and casino where gaming was conducted dishonestly and other incidents involving the cashing of solicitors' trust account cheques in questionable circumstances. The programme did not, however, contain any specific reference to the pending charges, but it should be noted that the fact of the charges having been laid had already been widely publicized in the media.

Young J said, at p 25 of his judgment: "If the first plaintiff had already been committed for trial and the trial were to be held in the near future, it would seem to me that there may well be sufficient material in this programme for the Court to consider that despite the public interest in free and full discussion it was just too dangerous for this programme to go to air at this stage. However, this sort of problem has been before courts in both England and Australia in the past and it seems to me that the prevailing authority is that it is very difficult indeed to say that any publication in either the printed or visual media which occurs nine months or more before the jury trial can have a real substantial risk of prejudice. The most recent example of such a finding is Attorney-General v News Group Newspapers Ltd [1987] QB 1. Of course, the question is a question of fact and previous decisions are only guidelines but they do seem to me to consistently warn a court that things that happen nine months or so before a trial are unlikely to be in the category of material which would interfere with a fair hearing. In the instant case it is more likely than not that neither the second plaintiff's civil proceedings, nor the first plaintiff's criminal trial will take place before a year is out. Accordingly, it does not seem to me that the effect on the magistrate, the judge or the jury if the programme goes to air in the near future will be sufficiently serious to constitute a contempt."

I find it difficult to reconcile this decision with the approach taken by Moffitt P in the 1980 Willesee Case. The plaintiff was a well-known bookmaker whose activities would be of considerable interest to that large section of the public who are interested in racing and would no doubt interest other members of the public as well. The report complained of was telecast to a wide audience and contained an inference that the plaintiff was guilty of the offences charged, or at least had been found so by the Australian Jockey Club, and contained other allegations, not previously publicized, about the plaintiff's involvement in other gambling activities in which the plaintiff was alleged to have had a dishonest role. If the effluxion of 12 months was thought to have such a dimming effect upon the public memory for there to be no real tendency to interfere with a fair trial, I have difficulty in seeing why similar considerations do not apply, a fortiori, to Hinch's remarks in this case.

It may be that such allegations of corruption and scandal are more common in New South Wales than in Victoria but it should not be forgotten that the Victorian public are equally exposed to such material by the media. Substantial sections of the electronic media are in the same hands in both States, and many programmes are telecast and broadcast simultaneously to both States. Common ownership of large sections of the print media similarly produces a tendency for the same news to be printed in Melbourne and Sydney. I am therefore unable to draw the distinction which the learned trial Judge drew between the two States for the purposes of assuming that scandalous accounts of the activities of a Catholic priest in Melbourne would be more likely to be remembered by the public in Melbourne than similarly scandalous accounts of the activities of well-known policemen and bookmakers in Sydney.

Whilst there is no doubt that the practice of referring to the prior convictions of an accused man should be avoided, every case must be treated on its own facts, and in this case I could not be satisfied beyond reasonable doubt that Hinch's broadcasts had the necessary tendency to interfere with the fair trial of Glennon.

In my opinion the circumstances of the passage of time prior to trial, the ephemeral nature of the spoken word as compared to print or visual image and the transient effect of these allegations on the public mind in the midst of a welter of other allegations against distinguished and less distinguished members of the community whether they be judges, politicians, policemen, doctors, bookmakers or clergymen all militate against such a finding. In this regard I respectfully agree with the views expressed by Donaldson MR. in Attorney-General v News Group Newspapers Ltd [1987] QB 1, at p 16 where he said: "However, proximity to the trial is clearly a factor of great importance and this trial will not take place for at least ten months, by which time many wickets will have fallen, not to mention much water having flowed under many bridges, all of which would blunt any impact of the publication. Furthermore, whilst I have never been a great believer in the efficacy of a conscious effort to put something out of one's mind, an acceptance of the fact that it is likely to remain there, but a determination not to take it into account, is more effective, and, whilst I fully accept that judges may have an exaggerated belief in the extent to which juries are prepared to be guided by them in such mental gymnastics, the fact is that for one reason or another a trial, by its very nature, seems to cause all concerned to become progressively more inward looking, studying the evidence given and submissions made to the exclusion of other sources of enlightenment. This is a well-known phenomenon. As Lawton J put in on the basis of vast experience of jury trials, both at the Bar and on the Bench: 'the drama, if I may use that term, of a trial almost always has the effect of excluding from recollection that which went before' (R v Kray (1969) 53 Cr App R 412 at 415)."

Even if I am wrong about this conclusion, it is still necessary to bear in mind the necessity to balance the public interest in the administration of justice, against the other important public interests of freedom of speech and freedom of discussion about public abuses, whether real or imaginary, about which the public has a right or need to know.

It is in this regard that it becomes important to examine the well-known principle enunciated by Jordan CJ in the Bread Manufacturers' Case, at ((1937) 37 SR (NSW)) p 249 where his Honour said: "It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a lawsuit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant. "It is well settled that a person cannot be prevented by a process of contempt from continuing to disclose publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as a plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter."

After citing authority his Honour continued: "If, however, under cover of discussing, or continuing to discuss, a matter of public interest statements are published the real purpose of which is to prejudice a party to litigation, the contempt is none the less serious that an attempt has been made to cloak it."

I think it is apparent from the decisions of the New South Wales Court of Appeal in Bacon's Case, the 1985 Willesee Case and Waterhouse's Case, that this principle is applicable to criminal cases, despite the doubts expressed by Moffitt P in the 1980 Willesee Case and the doubt cast on the applicability of the principle by the learned trial Judge in the present case. It is not without significance that in refusing special leave to appeal in the Waterhouse Case Gibbs CJ, Wilson and Dawson JJ commenced their judgment as follows: "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."

This would appear to constitute a clear recognition by their Honours that the Bread Manufacturers' principle is relevant to a criminal case. It is no doubt true that there is a greater public interest in ensuring that there is a fair trial of a criminal case involving the liberty of the subject than a civil case, but it seems to me that this factor can be allowed for when considering the balance of competing public interests.

Mr. McPhee QC argued that the principle of the Bread Manufacturers' Case permits the publication of the discussion of public affairs so long as that discussion - (a) relates to a matter of public interest, (b) is not in terms directed exclusively at the question of the guilt or innocence of the accused and (c) is not intended to interfere with the administration of justice. I agree with these propositions save that I would add that the Court must also be satisfied that in the circumstances of the particular case the balance of competing public interest favours the publication of the material in question.

In support of these propositions he relied upon the New South Wales Court of Appeal decision in the Registrar of the Court of Appeal v Willesee [1985] 3 NSWLR 650 and in particular upon a passage in the judgment of Hope JA, at p679, where his Honour, after quoting from the judgment of Mason J in the BLF Case, at pp 98-9, said: "The present case is not a case where the countervailing public interest - freedom of discussion - was exclusively related to the guilt or innocence of the accused, which was the issue to be determined at the trial. The countervailing public interest was unrelated to that question; it was the public interest in the ventilation of a continuing public concern about charges of corruption against police officers, including the statement made by the Police Minister Mr. Anderson in the Legislative Assembly as to the results of an inquiry which had been carried out in respect of allegations of police corruption made by James McCartney Anderson. Whether or not any of the defendants had at the time of the publication any knowledge of the currency of the trial, the trial was not the occasion of the publication, neither the alleged crime, the charge nor the trial was mentioned in the publication and the bearing which the publication undoubtedly had upon the trial was fortuitous. In my opinion the case is one where the principle enunciated by Jordan, CJ applies, and it is necessary to determine whether upon a balance (by the Court or by the law) of the public interest that Anderson's fair trial should not be prejudiced and the public interest in the ventilation of the matters of public concern which I have referred to, leads to a conclusion that the publication was or was not contemptuous."

Mr. McPhee pointed to the fact that there are certain categories of publication which do have the tendency to interfere with the course of justice and yet have been long recognized as not constituting contempts of court. These include reports of parliamentary proceedings and the proceedings of courts and royal commissions. He argued that the principle established by the Bread Manufacturers' Case was a further extension of this principle, which has been given statutory recognition in s5 of the United Kingdom Contempt of Court Act, and reflects an acceptance of the proposition that there must be free discussion in a democracy, and that the only practical way in which this can occur is through the media.

He said that in the present case the questions of public interest were: (a) whether with regard to all the matters raised in the broadcast it was in the public interest that Glennon should remain in charge of the Peaceful Hand Youth Foundation pending his trial; (b) whether it was in the public interest that a person with Glennon's antecedents should be able to conduct a Foundation involving children; (c) whether Glennon having determined to remain in office, it was in the public interest that the public generally and in particular that part of the public which were involved with the Foundation, or might pending Glennon's trial become involved with the Foundation, should be made aware of that fact.

I agree with this categorization of the public interest issues which I regard as matters of considerable importance and as the purpose or aim of the broadcasts. The question might be asked why these issues could not have been aired without reference to Father Glennon's antecedents, but I believe it to be the fact of those antecedents, and in particular his prior conviction and imprisonment for an offence against a young person, that gives great weight to the public interest issue.

As Lord Diplock pointed out in Attorney-General v English [1983] AC 117, at p 143 the test is not whether the broadcasts could have been written as effectively without reference to the prior conviction or whether some other phraseology might have been substituted for it that could have reduced the risk of prejudicing Glennon's fair trial, but rather whether the risk created by the words chosen was merely incidental to the discussion, that is no more than an incidental consequence of expounding its main theme.

Having regard to the presumption of innocence it might well have been said, had Hinch not referred to the prior conviction, that Hinch was engaged in an exercise of denigration and was prejudging Glennon in relation to charges which had not been proved against him. It certainly would not have alerted parents with children connected with Glennon's Foundation who, the evidence suggests, number approximately 1000, that their children were potentially in the hands of a man who was not only facing charges of sexual offences against children, but had in the past been convicted of a similar offence and imprisoned as a result. The matter with which Hinch was concerned, and which I consider that the public had a right to be informed of, was that this person was continuing to associate himself with the Peaceful Hand Foundation and with the children and young people associated with it and was likely to do so, at least until his trial in some ten months time.

It was also, in my opinion, a matter of significant public interest that no restrictive conditions had been attached to the grant of bail to such a person which would have the effect of preventing him from continuing his associations with children pending trial.

Further, I think that it was a matter of considerable significance for Hinch to draw public attention to the fact that persons with Glennon's antecedents could apparently freely associate themselves with youth activities. It would, in my opinion, be in the public interest for parents and children to be acquainted with this fact, not merely in relation to Glennon's Foundation, although that in itself is of significance, but also so that they might be on guard against persons who may be similarly inclined who have associated themselves with youth activities.

The learned Solicitor-General contested that the words used by Hinch could be properly regarded as directed to the public interest or merely incidental to the main theme of what he said. He said that Hinch had used the occasion to make a sensational broadcast, that the public interest aspect of what he said was a mere sham, and that the words were calculated to and did arouse bias and dislike towards Glennon. He claimed that the broadcasts amounted to trial by media, and that implicit in them was an assumption of guilt on the part of the accused man. I do not accept these propositions. Nowhere in Hinch's broadcasts was it suggested, either directly or indirectly, in my opinion, that Glennon was guilty of these offences. In my view the central theme of each of them was the danger presented to young people by apparently respectable adults who had betrayed the trust placed in them and the fact that Glennon, despite a prior conviction for such an offence and despite the pending charges against him, continued to associate with young persons by means of the Peaceful Hand Foundation, of which he was the alter ego. I, accordingly, am unable to agree with the learned trial Judge that what was attempted here was to dress a contempt of court in a "slick suit of public interest respectability" and I am satisfied that the purpose of the discussion related to the significant matters of public interest to which I have referred and that the disclosures as to Glennon's antecedents was incidental to that theme.

I now turn to the issue of the intention with which the broadcasts were made. It appears to be the law that it is unnecessary to establish intention to establish a contempt of court, and in this regard, I adopt the passage quoted by the learned trial Judge from Lane v Registrar of the Supreme Court of New South Wales (Equity Division) [1981] HCA 35; (1981) 148 CLR 245, at p 258. The question of lack of intention on the part of the alleged contemnor would appear to be usually relevant as an exculpatory factor. However, its presence would appear also to be relevant to the application of the Bread Manufacturers' principle and, indeed, Mr. McPhee conceded that before his client could avail itself of the principle, it was necessary to show that the offending statements were not made with the intention of interfering with the course of justice. The learned trial Judge found, in fact, that the statements made by Hinch were made recklessly in the knowledge that they might be likely to prejudice a fair trial of Glennon, but he did not find that they were made intentionally, in the sense that it was their object to prejudice such a fair trial. His Honour referred to the fact that it was not entirely clear from the authorities whether the intention referred to was of this kind and pointed out that very few people could be proved to intend to prejudice a fair trial, but many might be shown to have acted recklessly, as he found Hinch to have done. I am not at all sure that I agree with his Honour about the difficulty of proof because I would have thought that there were many cases where the inference of intention could be drawn from the words used. It seems that once his Honour came to the conclusion that Hinch had acted recklessly, he considered that there was no room for the operation of the Bread Manufacturers' principle.

The question is whether the type of recklessness which his Honour found Hinch to have been guilty of precludes reliance on that principle. As a matter of logic I cannot see why it should do so. If the competing public interests point strongly in favour of publication and disclosure then it seems to me that it cannot matter whether Hinch appreciated that a possible by-product of disclosure might be a detrimental effect upon the trial of the person concerned. Obviously enough, the closer the publication to the trial the more the competing public interest would militate against disclosure. Also it is obvious enough that it is not Hinch's perception of the relative significance of the competing public interest that is determinative of the question which must be determined on an objective basis. However, it seems to me that if such an objective assessment leads to a conclusion that, at the time of the publication the public interest in disclosure outweighed the public interest in a fair trial for the accused person, then it matters not whether Hinch acted recklessly, negligently or inadvertently in relation to the question of interference with Glennon's trial. On the other hand, if his object was either wholly or in part to intentionally interfere with the trial, then I think that different considerations should apply.

In this regard it seems to me that the approach of Mahoney JA in the Waterhouse Case is of some assistance. His Honour there referred, without attempting to state them exhaustively, to three possible forms of interference with a fair trial. He said that these consisted first, of statements which denigrate or create prejudice against the person against whom the charges are pending, secondly, statements which are relevant to matters which are relevant to the guilt or innocence of the accused and have the required tendency to produce decisions on them other than upon the evidence given at trial and, thirdly, statements which assert the accused's guilt of the offences charged.

In relation to statements of the first kind into which category he found that the statements he was considering fell, and by inference, I take it in relation to statements of the second kind, his Honour thought it significant to take into account the lapse of time between publication and trial. His Honour went on to say: "There is also to be taken into account the privilege of those who wish to do so to discuss matters which are of public interest. The law has recognized that good may come from the public publication of facts relating to, inter alia, the criminal or otherwise disreputable activities of those who occupy public position or whose acts legitimately may be the subject of public scrutiny. If there is to be restriction of the publication of such matters, it must be justified and substantial justification will be required. "The extent of what may be done in the exercise of this privilege and in particular, the concept of the so-called public interest may require examination in an appropriate case. And it must be borne in mind that, if such publication is justified because of the public interest it serves, that public interest is being achieved at the expense of damage, sometimes gross damage, to the individual concerned. It will be necessary to consider the extent to which the public interest is to be served at the expense of the individual."

On the other hand his Honour thought that statements of the third kind, that is suggestive of guilt either directly or by inference would always be regarded as serious contempts.

If this test is to be applied to the circumstances of this case, I consider that Hinch's statements fall into the first and possibly into the second category of statements referred to by Mahoney JA but I do not consider that they fall into the third category either directly or by inference.

One question raised by the authorities is the question of the manner in which the Court should approach the task of balancing the competing public interest in cases to which the Bread Manufacturers' principle applies.

I have already referred to the relevant passage from the judgment of Gibbs J in the BLF Case earlier in my judgment.

In the same case Mason J said, at (152 CLR) p 98: "The remarks of Jordan CJ and more recently of Lord Scarman stressed the overriding importance of freedom of discussion and speech to which should be added the equal importance of the public having access to information which it has a legitimate interest in knowing. Where the alleged contempt consists of newspaper discussion or report it is this public interest that is weighed in the balance against the public interest in maintaining the integrity of the administration of justice by taking such steps as may be necessary to protect it from interference."

Wilson J said at p 133: "The necessity of weighing up on the one hand the public interest in preserving the purity of the stream of justice and on the other the public interest in preserving freedom of speech and debate on matters of public concern was recognized by Deane J and emphasized by his citation of a well-known passage from the judgment of Jordan CJ in Ex parte Bread Manufacturers Ltd [1937] NSWStRp 22; (1937) 37 SR (NSW) 242, at pp. 249-250."

More recently in the passage already cited from the reasons of Gibbs CJ, Wilson and Dawson JJ for refusing special leave in the Waterhouse Case, their Honours specifically referred to the fact that Young J was required to exercise a discretionary judgment, balancing two principles of general importance.

In the 1985 Willesee Case Priestley JA, at ((1985) 3 NSWLR) pp. 682-3, referred to the above passages from the judgments in the BLF Case, and whilst expressing doubts as to whether there was any real difference between the two approaches, characterized the approach of Gibbs CJ as what he called a normative approach as distinct from what he described as a balancing approach adopted by Mason and Wilson JJ. He said the normative approach would mean that if the Court, as a matter of fact, was satisfied that the relevant discussion prejudiced the trial as an incidental, but not intended by-product of the discussion and the discussion was on a matter of public concern, the conclusion must be that no contempt was committed. Speaking for myself I am not sure that this is what Gibbs CJ intended to convey in the relevant passage of his judgment. If the normative approach as described by Priestley JA was to be adopted it would seem that statements made at the time of trial would be treated in exactly the same way as statements made well in advance of it. This does not seem to be in accordance with authority.

If, on the other hand, Gibbs CJ intended to convey that it is first necessary to determine whether the relevant statement has the necessary tendency to interfere with the due course of justice and then to consider the competing public interest in determining whether to punish the statement as a contempt, then it may be that he was not propounding any different test than the other members of the Court.

Whether the balancing approach is undertaken before or after determining the question of whether the statements in contention have the necessary tendency to interfere with the course of justice I consider that in the present case the Bread Manufacturers' Case principle can not only be relied upon by the appellants but that the balance of public interest is in their favour. If, as seems to have been the case, a person with Glennon's antecedents was continuing to associate himself with children whilst awaiting trial on charges of this nature, then, as I have said, I accept that there was a serious public interest in the public being made aware of it for the reasons already stated. If, contrary to my view, Hinch's broadcasts some ten months prior to trial did have a tendency of the required type to interfere with Glennon's fair trial, then the situation was one of Glennon's making.

Important as Glennon's right to a fair trial is, it seems to me that the public interest in the protection of children and young persons from suffering possible harm outweighs it, particularly having regard to the probable lapse of time prior to his trial.

Having regard to my conclusion, it is unnecessary for me to deal with the separate arguments which Mr. McPhee advanced on behalf of the second-named appellant.

I would allow the appeals.

Appeals dismissed save to the extent necessary to vary the sentences imposed.

Solicitors for the appellants: Ellison Hewison and Whitehead.

Solicitor for the respondent: RJ Lambert, Crown Solicitor.