Report No. 200
(d) Australia: Case law and Law Reform Commission prejudice on account of 'imminent' proceedings: accepted in Australia:
Western Australia has a provision in section 11A of the Evidence Act, 1906 which authorises a Judge to restrict publication of evidence in any proceeding where the Judge considers that publication may tend to prejudice any prosecution that has been or may be brought against a person.
The Law Reform Commission of Australia issued a number of discussion papers addressing the issues of contempt by publication in 1986, 1987 and 2000. These papers assert that contempt arises when there has been publication of prejudicial material, regardless of whether or not there was an intention to interfere consciously with an imminent or ongoing court case. Typical examples of prejudicial publicity include publication of a prior criminal record of an alleged offender, or insinuations of the offender's guilt or innocence, and reporting a confession (Australian Law Reform Commission, 1987; Pearson, 1997) (as quoted by Keylene M. Douglas in his article "Pre-trial publicity in Australian print media: Eliciting bias effects on Juror decision making (2002)").
We shall next refer to the peculiar case of Glennon in Australia. Glennon's case related to pending criminal proceedings but it is relevant in the present context.
Summary
We are, therefore, of opinion that the word 'imminent' criminal proceedings is no longer vague in as much as the Supreme Court in A.K. Gopalan v. Noordeen AIR 1970 SC 1694 has stated that publications made after 'arrest' of a person and before the filing of a charge sheet, can be the starting point of 'pendency'. Any publications which are prejudicial to the suspect who has been arrested before filing of charge sheet/challan can be contempt under section 3 if they interfere or tend to interfere with the cause of justice. In our view, the word 'imminent', if it is so defined, cannot be said to be any longer vague.
In fact, in UK, in New South Wales, date of arrest is treated as the starting point while in Australia and New Zealand, the fact that criminal proceedings are 'imminent' is a sufficient consideration. For all these reasons, we are firmly of the view that though section 3 (2) may be retained so as to exclude from contempt certain publications, the Explanation below section 3 requires to be modified, so far as clause (B) relating to criminal proceedings is concerned, so as to include the arrest of a person in addition to filing of charge sheet or challan or issue of summons or warrant against the accused.
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