Contempt by the Media: How the Courts Define It

Author(s): Michael Chesterman

Source: The Australian Quarterly , Summer, 1986, Vol. 58, No. 4 (Summer, 1986), pp.
388-397
Published by: Australian Institute of Policy and Science

Stable URL: https://www.jstor.org/stable/20635399

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 388

Professor Michael Chesterman is a member

of the Australian Law Reform Commission

Contempt by the
media: how the
courts define it*
Not just a state of mind
A principle under which one may be guilty?that is, liable to suffer criminal
penalties?of 'contempt of court' would seem to establish an example of what
George Orwell in Nineteen Eighty-Four called a 'thought-crime'. It would
appear that one may fall foul of the law for simply 'scorning or despising'
a court, or considering it to be 'mean, vile or worthless' (the phrases in
quotation marks are taken from the Macquarie Dictionary definition of
contempt). In fact, the usage of 'contempt' in the law is as a term with heavy
ideological overtones, describing a wide range of conduct involving some
element of affront or resistance to the authority of the courts, or some degree
of interference with the administration of justice by the courts. It did not always
have this focus on institutional authority. In the early days of its development
in English law, contempt of court was viewed as a species of contempt of the
personal authority of the King to exercise absolute, divinely bestowed power
over all his subjects. Travelling royal justices who conducted assize courts
throughout the realm were the major manifestation of royal authority amongst
communities outside London, and it was not surprising that resistance to their
authority was conceptualised in this way within the law. This view of things
provided an ideological basis for them to punish contempts in a peremptory
and highly draconian fashion. An accused man in 1631, for instance, who
responded to the announcement of his conviction for murder by throwing a
portion of a brick at the judge, was rewarded for this by having his right hand
cut off then and there, in the presence of the court. He was then hanged for
the murder and the amputated hand was fixed in a prominent place near the
courthouse, as an example to others similarly minded. Nowadays, not only
are the punishments milder in tone, but also the law more explicitly speaks
of contempt of institutions, such as courts or houses of parliament, or even
(by statutory extension) of royal commissions or tribunals.
This is not to say that the vernacular meanings of contempt?focusing as
they do on states of mind?have no relevance in the law. One occasionally
encounters statutory provisions which employ contempt in its ordinary
meaning: for example, it is an offence under the Defence Act 1903 (Common
wealth), section 84, to wear any uniform of the Defence Force 'in such a manner
or under such circumstances as to be likely to bring contempt upon that

* A paper prepared for the July 1986 Conference of the Sociological Association of Australia and
New Zealand, held at the University of New England, Armidale, NSW. The views expressed are
those of the author, not of the Australian Law Reform Commission.

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CONTEMPT BY THE MEDIA 389

uniform'. (This suggests that uniformed soldiers should stay away from nuclear
disarmanent rallies.) More relevantly to the present topic, one finds that under
the present law of contempt, the vernacular notion of contempt?scorning
or despising something?may be an element in conduct amounting to
contempt, but this is not necessarily the case. The legal concept of contempt
has stretched far enough to embrace a wide range of activities which interfere
in some way or other with the administration of justice by the courts, but
are not necessarily accompanied by a contemptuous state of mind. I shall
illustrate these two propositions with reference to the impact of contempt law
upon the operation of the media.

The media heaping scorn on the judges

Trainee journalists nowadays are quickly given to understand that it is more
than their job is worth to publish remarks which evince contempt (in the
vernacular sense) or scorn for courts or judges. There are accordingly not many
examples of this form of media contempt at the present day. An English case
of 1900,1 involving newspaper abuse of a style fitted to the times, shows how
the law of contempt is readily available to punish the 'thought-crime' of
contempt made manifest in published form. A judge presiding in the Crown
Court in Birmingham began a trial of obscene libel by warning the local press
not to publish any 'objectionable, indecent and obscene matter'. The
Birmingham Daily Argus responded with an article including the following
somewhat disrespectful comments:
Mr Justice Dowling, having so few prisoners to try in Birmingham, and feeling
the inspiration strong upon him to be a terror to evildoers, filled in a pleasant five
minutes yesterday by 'giving fits' to the reporters . . . His dimunitive Lordship
positively glowed with judicial self-consciousness . . . But the terrors of Mr Justice
Darling will not trouble the Birmingham reporters very much. No newspaper can
exist except upon its merits, a condition from which the Bench, happily for Mr
Justice Darling, is exempt. There is not a journalist in Birmingham who has anything
to learn from the impudent little man in horse-hair, a microcosm of conceit and
empty-headedness, who admonished the Press yesterday . . . One of Mr Justice
Darling's biographers states that 'an eccentric relative left him much money.' That
misguided testator spoiled a successful bus conductor. Mr Justice Darling would
do well to master the duties of his own profession before undertaking the regulation
of another.

The editor and publisher of the Argus only escaped imprisonment for contempt
by tendering a formal apology to a Bench of three judges of the Queen's Bench
Division. He was ordered to pay a fine of 100 pounds and costs. It is important
to note that the branch of contempt law under which he was convicted?it
is called 'scandalising the court?is not framed in terms of casting insults or
abuse at courts or judges, but more generally in terms of publishing statements
which 'tend to undermine public confidence in the administration of justice'.

Media contempt without scorn

From a practical point of view, the situations in which the media may be liable
for contempt without any contemptuous state of mind being present are much
more important. There are three major strands of liability within contempt
law under which this may occur.

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 390 THE AUSTRALIAN QUARTERLY, SUMMER, 1986

First, I must again mention the law of scandalising. This is because, as the
law stands, it may be possible for well-founded allegations of judicial
impropriety, even when honestly believed to be true, to constitute 'scandalising'
because they have the relevant tendency to undermine public confidence in
the administration of justice. In 1981, the Builders Labourers' Federation
proceeded against Mr Malcolm Fraser for contempt for implying in a media
interview that the Federal Court of Australia would pay deference to his wishes
in determining the deregistration proceedings against the Federation. In
dismissing the claim, the judge made the following remarkable observation:
A statement made which scandalises or otherwise lowers the authority of the court
does not cease to constitute a contempt of the court if the statement is false [sic].
For this purpose, the truth or validity of the statement is immaterial.2

As things turned out, the same judge found Mr Norm Gallagher guilty of
contempt in the following year, in proceedings brought by the Commonwealth
Attorney-General, for alleging that the Federal Court deferred to the industrial
muscle of the BLF.3 I should make it clear that this view of the irrelevance
of the truth or falsity of a 'scandalising' remark is not established with complete
certainty in contempt law. But it does suggest that even a media publication
which contained worthwhile evidence of impropriety within the administration
of the system of justice (such as the 'Four Corners' program dealing with the
events which subsequently led to the conviction of the NSW Chief Stipendiary
Magistrate, Mr Farquhar) may attract contempt sanctions.
Secondly, and of day-to-day significance for the operations of news and
current affairs programs, there is the sub judice rule. This rule, like the doctrine
of 'scandalising', is expressed in broad terms. It is to the effect that a publication
will amount to contempt if, as a 'matter of practical reality', it has a 'real
and definite tendency to prejudice' a current or forthcoming trial, by virtue
of exerting influence on the deliberations of the person or persons responsible
for adjudicating the issues the stake.4 As every journalist who has worked in
the area of news or current affairs knows, this rule is of crucial importance
when one is dealing with issues or individuals involved in a criminal jury trial,
current or pending. The recent case involving Mr Derryn Hinch5 gives a good
illustration of the type of publication caught by the sub judice rule. Hinch
was convicted and sentenced to six weeks' imprisonment and a fine (subject
to appeal) for broadcasting particulars of an accused man's prior conviction
and of two prior charges, which had been laid against him, but resulted in
acquittals. These all were for sexual offences and the charges for which the
accused man was shortly to stand trial were also of a sexual nature. The element
of prejudice arose from the fact that the details of an accused person's prior
criminal record, or of criminal charges that have been laid in the past, are
in the normal course of a criminal trial withheld from the jury, on the grounds
that they are thought to be of limited probative value but are likely to
influence the jury unduly in its deliberations. This case illustrates that a major,
though not the sole, preoccupation of the sub judice rule is to act in aid of
rules of evidence and criminal procedure which have been devised in support
of the presumption of innocence. But it is an untypical case, in so far as Hinch

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 CONTEMPT BY THE MEDIA 391

made the last of his three broadcasts after having been warned that contempt
proceedings might be instigated against him. The judge found that he acted
recklessly, in the sense that he knew of the risk of being found guilty of
contempt and, indeed, deliberately decided not to take legal advice on the
matter. More commonly, the sub judice rule is infringed by publications which
are neither intended to prejudice the relevant trial, nor made recklessly, but
which occur through inadvertence or inexperience on the part of those
responsible for the publication, in failing to appreciate that the trial might
be put at risk, or even that the trial existed. In this context of contempt, one
can indeed be found guilty without having the slightest realisation that one
is commiting a contempt, or any desire to evince a scornful or contemptuous
attitude of mind towards the courts.
I should add that liability under the sub judice rule is subject to two defences
of major importance. First, with a few minor exceptions, a publication will
not infringe the rule if it constitutes a fair and accurate report of legal
proceedings or of parliamentary proceedings. Secondly, there is a 'public
interest' defence which, as formulated in New South Wales, is to the effect
that prejudicial material contained in a discussion of matters of general public
interest which bears only indirectly and unintentionally upon a current or
forthcoming trial may be exonerated from liability.6
The third and final strand of contempt liability affecting media publications
is called the prejudgment principle. It is to the effect that a publication may
be held in contempt on the ground that, although it does not influence the
outcome of particular proceedings or undermine public confidence in the
administration of justice, it nonetheless prejudges issues at stake in a current
or forthcoming trial. The mere presence of a significant element of prejudgment
is enough to attract liability. This principle was firmly established by the
decision of the House of Lords in the leading case of Attorney-General v Times
Newspapers Ltd,1 arising out of the thalidomide affair. Following the marketing
of thalidomide as a tranquillising drug suitable for use by pregnant women
in relieving the effects of morning sickness (and for other purposes as well),
a number of children brought civil claims for damages in England, as in other
parts of the world, alleging that they had been born with deformities because
their mothers had taken thalidomide during pregnancy. The claims were against
Distillers Ltd, the distributor of the drug in England. While these claims were
awaiting trial, the Sunday Times prepared two major articles on the matter.
The first, calling on Distillers to pay damages to the children, was published.
The second contained evidence allegedly establishing that Distillers had been
guilty of negligence in distributing the drug without proper warnings as to
its side effects. It accordingly prejudged one of the main issues at stake in
the litigation between the children and Distillers. The House of Lords held
unanimously that an injunction, granted in the Queen's Bench Division at
the instance of the Attorney-General to restrain publication of the second
article, should be sustained. The crux of the decision is that the House of
Lords was satisfied that there was no significant risk of prejudice to the
judgments in the various civil actions, because these actions would be heard

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 392 THE AUSTRALIAN QUARTERLY, SUMMER, 1986

by judges sitting alone, who would not be influenced by the article. Nevertheless,
the article constituted a contempt because it amounted to a form of 'trial by
media':
. . . 'trial by newspaper', ie, public discussion or comment on the merits of a dispute
which has been submitted to a court of law or on the alleged facts of the dispute
before they have been found by the court on the evidence adduced before it, is
calculated to prejudice the . . . requirement . . . that parties to litigation should
be able to rely on there being no usurpation by any other person of the function
of that court to decide their dispute according to law. If to have recourse to civil
litigation were to expose a litigant to the risk of public obloquy [this is a somewhat
overblown word for 'reproach' or 'disgrace'] or to public and prejudicial discussion
of the facts or merits of the case before they have been determined by the court,
potential suitors would be inhibited from availing themselves of courts of law for
the purpose for which they are established.8

This decision has been applied on occasions in Australia9 and has not been
significantly questioned, despite the breadth of the prejudgment principle. It
will be apparent again that nothing in the nature of a contemptuous state of
mind is needed to attract liability under this principle. The article by the Sunday
Times was conceded on all sides to be a thoroughly responsible product of
investigative journalism, in no way suggesting that courts were things to be
despised.

An overgrown octopus?
It can now be asked: how has it come about that the various tentacles of the
law of contempt have grown so as to extend such a long way from the original
concept of an act evincing a scornful or contemptuous state of mind towards
the courts? Furthermore, why have the tentacles sought to take such a firm
hold on the operations of the media? A major contributing factor, particularly
so far as the first question is concerned, is undoubtedly that the judiciary not
only defines what constitutes contempt (as implied in the title to this paper),
but also applies its own definition to individual cases. Ever since a judgment
which was prepared in unusual circumstances for a 'scandalising' case in 1765,
and which is strictly not authoritative because it was never actually delivered,10
it has been recognised that the normal mode of trial for contempt cases is
trial by a judge, or bench of judges, sitting without a jury. The familiar modes
of trial applicable to criminal offences?trial by jury on indictment, when the
offence is a major one: summary trial before a magistrate, in other cases?
are simply not available.11 It follows that neither the collective wisdom of juries
composed of non-lawyers, nor the wisdom (if that is the right word) of
Parliament has been brought to bear in determining what forms of publication,
if any, should be deemed to have such an intrusive effect on the workings of
the court system as to warrant legal repression through the use of criminal
sanctions.
It does not follow, however, that if juries were used to decide contempt cases,
or if the field were taken over by legislatures in Australia, there would be no
legal restrictions on publications such as I have just outlined. In European
countries, whose systems of law are not derived from English common law

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CONTEMPT BY THE MEDIA 393

and possess no concept of contempt, there are nonetheless legal prohibitions

on the publication of material which might prejudice a forthcoming or current
trial. In England itself, the Contempt of Court Act 1981 has reduced the scope
of the sub judice rule to some extent, but has had a questionable impact on
the prejudgment principle and no impact at all on the law of scandalising.
The Australian Law Reform Commission, where I have been in charge of a
broad-ranging investigation into all aspects of contempt, has recently proposed
that the law of scandalising and the prejudgment principle should, in effect,
be dismantled, but has reaffirmed the need for sub judice restrictions,
particularly in the context of jury trials.12
The elastic character of the concept of contempt has, however, enabled judges
to indulge in what at times appear uncomfortably to warrant the description
'knee-jerk reactions', when they encounter apparent threats to the operation
of the court system. The judges have not been too open about this, because
an excessively punitive act of retaliation on their part, they are when confronted
by a perceived threat, is clearly open to the criticism that they are acting as
judges in their own cause in order to 'protect their own patch'. Accordingly,
the judicial treatment of contempt matters shows signs of a special desire to
depict the courts' response as thoroughly reasonable and plausible. This
manifests itself particularly in two ways. First, there are a number of dicta,
particularly in recent cases, to the effect that contempt powers should be
'sparingly exercised' and that the trial of alleged contempts by judges sitting
alone should be seen as a 'special' rather than the normal procedure.13 These
things are said even though, in actual practice, the courts scarcely ever use
any other form of procedure to try contempts. Secondly, and more significantly
for the present discussion, the arguments put forward to justify imposing
liability are expressed in terms of a weighty concern that, but for the operation
of contempt law, the system of administration of justice would face imminent
collapse. I would like to develop this second point further in relation to each
of the three 'strands' of media contempt.
So far as 'scandalising' is concerned, the alleged justification for giving the
judiciary extra-special protection against adverse comment, over and above
that provided by the laws of libel and slander, is that public confidence in
the administration of justice must be maintained. The importance of public
confidence was spelled out in 1880 by the then Chief Justice of New South
Wales:
Without armed guards, or any ostentatious display?with nothing but its common
law attendant, the sheriff and its humble officials the courtkeepers and tipstaffs,
[the court] derives its force from the knowledge that it has the whole power of
the community at its back. This is a power unseen, but efficacious and irresistible,
and on its maintenance depends the security of the public.14

There are numerous unproven assumptions in the judicial arguments in support

of 'scandalising' being an offence: for example, that a loss of public confidence,
without nothing more, would be sufficient to destroy the court system; that
it may be better to maintain public confidence at all costs rather than to admit
from time to time that there are demerits in the system, possibly justifying

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 394 THE AUSTRALIAN QUARTERLY, SUMMER, 1986

substantial alterations to it: that judges, in trying cases of scandalising, are

better equipped than juries to assess what qualities must be maintained amongst
the judiciary to uphold public confidence and what allegations of a shortfall
in judicial standards will serve to destroy such confidence; and finally, that
summary punishment by the courts of people who publicly criticise them will
be less damaging to the image of the courts than the critical comments
themselves.
With regard to the sub judice rule, the element of overstatement of the case
for maintaining restrictions seems to me to be lower than in the other two
branches of media contempt law. The matter is generally posed as being one
of preserving the right of the accused persons and civil litigants to a fair trial,
at the expense, so far as necessary, of allowing the media freedom of publication
in reporting and commenting on court cases. Yet even here, the emphasis is
placed upon damage to the system of administration of justice as a whole,
rather than impairment of the rights and expectations of citizens appearing
before the court. A significant offshoot of this in English (though not
Australian) law is that the Attorney-General's consent has become mandatory
if contempt proceedings launched by an accused person or litigant in respect
of prejudicial publicity are to go ahead.15 Apparently, to acknowledge that
the primary person aggrieved by instances of prejudical publicity is the litigant
whose case is prejudiced, rather than the system as a whole, would be to
jeopardise the general assertion that contempt as a whole exists of necessity
to protect the workings of the system. It is also argued on occasions that the
courts, by regularly denouncing the prejudicial effect of media publicity on
jury trials, are assisting (though doubtless unconsciously) in diverting public
attention from other abuses which are at least of equal importance in
undermining the fairness of trials and which generally go unpunished. I am
referring to such things as fabrication of evidence, unfair forensic tactics and
incompetence by legal practitioners.
It is the judicial dicta in support of the prejudgment principle that supply
the clearest instance of judicial overstatement, deriving from a feeling of being
threatened by the media. The crucial aspect of this principle is that it is
applicable even when the proceedings allegedly prejudged will not be influenced
as to their outcome by the element of prejudgment. The prejudging publication
is instead prohibited because of its possible impact on future litigants, and
on the operation of the system of administration of justice in general terms.
The following description of the evils to be feared comes the judgment of Lord
Morris in the Sunday Times case:
... is it not contrary to the fitness of things that there should be unrestricted
expressions of opinion whether the merits lie with one party to litigation rather
than with another? Even if some expressions of opinion were the result of honestly
attempted sound reasoning how easy it would be for later statements by others to
amount simply to advocacy inspired by partisan motives for the cause of one party,
and how difficult it would be then to stem the tide of public clamour to the victory
of one side or the other. Though a judge would hope to be resistant to any pre
trial soundings of the trumpet it must surely be contrary to public policy to allow
them full blast. Furthermore, not only is it from the public point of view unseemly
that in respect of a cause awaiting the determination of a court there should be

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CONTEMPT BY THE MEDIA 395

public advocacy in favour of one particular side or some particular points of view
but also the courts, I think, owe it to the parties to protect them either from the
prejudices of prejudgment or from the necessity of having themselves to participate
in the flurries of pre-trial publicity. In this connection I agree with Lord Denning
MR when he said?We must not allow "trial by newspaper" or "trial by television"
or trial by any medium other than the courts of law'.16

Coupled with the references in the House of Lords decision, exemplified earlier,
to the notion of 'usurping' the role of the courts, this passage displays a judicial
fear that, while the courts will undoubtedly remain the state agencies
empowered to determine and enforce legal rights and liabilities, the media may
appear in the public mind to be the 'true' dispensers of law and justice. Such
a fear may have been inspired particularly by the special circumstances of the
thalidomide litigation. This involved numerous plaintiffs whose misfortunes
had attracted wide publicity, seeking in a semi-collective way (though by
individual claims) to obtain compensation from a single corporation whose
alleged negligence had caused widespread harm. The restraint of public
prejudgment by the media in situations such as this may appear as an essential
step in ensuring that the ultimate resolution of the issues raised by this public
disaster should remain within the context of privately litigated disputes
adjudicated by the courts and the courts alone. But as long as mass production
and marketing of potentially dangerous commodities subsist in our society,
situations in which the legal implications of a major disaster break the bounds
of private litigation will inevitably recur, and the public discussion in the media
will threaten to swamp the operations of the courts.
Chiefly because the prejudgment principle was born out of the sub judice
rule, which only applies while a trial is current or pending, the prohibition
which it imposes does not cover 'post-judgments' as well as prejudgments.
It is permissible for the media, subject only to the law of scandalising, to re
enact, criticise or adopt any stand at variance with, a judgment in a case, once
it has been delivered. Thus, although the media may seek to capture the minds
and hearts of the public in relation to the decision in a given case, they must
let the courts have the first bite at this cherry. This is something of an illogicality,
if one accepts the underlying premise of the principle that the courts are
justified in seeking to protect their image against media organisations which
purport, at some level or other, to be the true dispensers of justice in the
community.

The media's own ideological 'push'

This criticism of the courts' tendency at times to involve deep fears as to the
survival of the court system as a justification for restricting publications relating
to courts and their work is not intended to imply that the media themselves
do not erect countervailing ideologies. It is of course in their nature to do so.
As well as 'freedom of publication', one hears the argument that the sub
judice rule unduly inhibits the media from performing their 'public duty' to
report court proceedings fully and adequately and thereby to keep the courts
under public scrutiny at all times. This is actually something of a non sequitur
because, as mentioned above, contempt law leaves virtually complete leeway

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396 THE AUSTRALIAN QUARTERLY, SUMMER, 1986

for the fair and accurate reporting of legal proceedings. Its prohibitions fo?us
primarily on reports and comments relating to things said or done outside
the court. This argument by the media also tends to gloss over the fact that,
due to such contemporary factors as the demand for 'instant news', the tyranny
of rigid deadlines and the desire amongst most media outlets to package the
news in such a way as to attract readers and viewers away from competitors,
'fair and accurate reporting' of court proceedings is something of a myth.
Reports are often inaccurate in what they specifically say, and almost invariably
misleading through what they leave out. This is not to deny, however, that
the best investigative journalism relating to crime or the court system could
not occur if contempt law placed such a disincentive on court reporting as
to render it unprofitable for a media organisation to send its journalists to
courtrooms.
Much play is also made of the need for the media to discuss matters which
are 'of public interest'. But in tending to equate the 'public interest' with issues
which the media believe will attract readers and viewers, the media endeavour
constantly to widen the scope of defences based on 'public interest' in the
context of the sub judice rule. The predilections of dingoes, for example, can
suddenly become a matter of acute 'public interest' from the moment of the
first reporting of the death of Azaria Chamberlain. There would be no problem
with this if it did not give scope for the media to seek to justify allegations
and comments which might be prejudicial to the trial of the person concerned
in the relevant affair.
Finally, the media are loath to acknowledge the influence of their broad
depictions of 'crime waves' or 'organised crime', or of marginal groups
concerned in alleged offences (such as the Ananda Marga), let alone other
more generalised distortions of reality, which are likely, in many criminal trials,
to bear significantly on the deliberations of the jury. 'Freedom of publication'
would seem to include the freedom to half-persuade the public to think in
cetain ways about crime, which may be anything but supportive to the aim
of ensuring a fair trial in a particular criminal case.

A law reformer's view

This is not the place to make final and precise 'choices' between the competing
interests at stake in the field of media contempt. As I have already implied,
I am of the view that both the law of scandalising and the prejudgment principle
are strands in the law of contempt which could usefully be eliminated. They
are the subject of a degree of judicial overstatement, in which age-old ideologies
as to the prerogatives of the courts mingle with contemporary fears as to the
power of the media. On the other hand, I would not wish to see the media's
arguments in favour of 'freedom of publication' and 'open justice' completely
override the sub judice rule, with its emphasis on the fair trial of individual
citizens brought before the courts. But I have no doubt that, in reaching these
conclusions, I am very much the victim of ideologies associated with my own
position and personal predilections. The audience at this Conference may well
wish to tell me what these ideologies are.

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CONTEMPT BY THE MEDIA 397

Footnotes and references

1 R v Gray (1900) 81 LT 534.
2 Viner v BLF [1982] 2 IR 177, 183 (Northrop J).
3 Durack v Gallagher (1982) 44 ALR 273. Special leave to appeal was refused by the High Court:
Gallagher v Durack (1983) 152 CLR 238.
4 See, e.g., John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370, 372.
5 Attorney-General for Victoria v Hinch, unreported, Supreme Court of Victoria (22 May 1986).
6 Registrar, Court of Appeal v Willesee, unreported, Court of Appeal, NSW (20 December 1985).
It is not yet clear whether this broad formulation will be accepted in other parts of Australia,
in the context of criminal trials. Some doubts about it were expressed in the Hinch case.
7 [1974] AC 273.
s Id, 310 (Lord Diplock).
9 See, e.g., Commercial Bank of Australia Ltd v Preston [1981] 2 NSW LR 554, 561.
10 R v Almon (1765) Wilm 243.
11 This principle was specifically upheld by the NSW Court of Appeal in a sub judice case in 1984:
Registrar, Court of Appeal v Willesee [1984] NSWLR 378. An application for leave to appeal
to the High Court was refused.
12 Australian Law Reform Commission, Contempt and the Media, Discussion Paper No 26, 1986.
The proposals in this Paper regarding sub judice recently received the approval of the Victorian
Attorney-General, in his opening speech to a conference, Journalism v The Law, Leo Cussen
Institute of Continuing Legal Education, Melbourne (29 June 1986).
13 See, e.g., Balogh v Crown Court at St Albans [1975] QB 73, 85 (Denning MR).
14 Re The Evening News' (1880) 4 LR (NSW) 211, 237 (Martin CJ).
is Contempt of Court Act 1981 (UK) s 7.
i6 Attorney-General v Times Newspapers Ltd [1974] AC 273, 303-4. The quotation from Denning
MR is from the Court of Appeal proceedings in the same case, reported at [1973] 2 WLR 452,460.

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