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Report No. 200

Australia

Glennon & Hinch cases: freedom of speech and liberty have to be balanced. But a conviction for contempt due to likelihood of interference with administration of justice need not result in setting aside the conviction of an accused: Is it correct?

Glennon was a Roman Catholic priest who, in 1978 was convicted of indecently assaulting a girl under 16. Seven years later, he appeared as a Dean J. Stated (at p. 58) that:

"The right to a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law."

The High Court of Australia held that although the trial might not take place until some two years after the first broadcast by Mr. Hinch, the trial courts were entitled to reach the conclusion that there was 'a substantive risk of serious interference with the fairness of trial'. In sensational cases, jurors were prone to remember the publication in spite of lapse of time. The broadcasts of Hinch were not saved by the 'public interest' defence.

But when Glennon was later convicted and he raised a question that his trial was vitiated on account of unfair publicity about his past character and conviction. He relied on the judgment punishing Mr. Hinch for his publication. But the High Court of Australia rejected his plea in R.V. Glennon: (1992) 173 CLR 592 and restored the conviction of Glennon for sexual offences against young people.

The Court made a distinction between preventing prejudicial publicity rather than minimising its impact at trial. It stated that different tests were applicable in contempt proceedings and on the one hand to criminal convictions. Contempt proceedings are concerned with potential prejudice, which must be assessed as at the time of publication. Actual prejudice is not an element of contempt charge.

By contrast, before a conviction is set aside, a court of appeal is concerned with the extent of actual prejudice and, in particular, whether a miscarriage has occurred. There was no inconsistency in upholding the convictions of Glennon and punishing Hinch for contempt. Community's expectations, it was observed, must be fulfilled. It stated that in such a situation, the quashing of convictions may indeed open 'flood-gates'. But the Judgment in Glennon has been criticised.

Allam Ardik, in the Faculty of Griffith University (2000), Alternative Law Journal, page 1, says that the appellate judge restored the conviction on account of 'fear of public outrage'.

Prof. Michael Chesterman (1999) NSW Unit of Tech, (Sydney Law Review p.5 refers to statistics to say that 11 cases out of 20 cases since 1980 in Australia, where there was 'convergence' in the sense that the trial was aborted and the contemnor convicted. Out of the remaining 9 'divergent' cases, seven were either where the jury did not encounter publicity or the trial Judge made no such finding as to whether the jury encountered publicity.

Only in three cases, the jury trial was aborted but contempt proceeding failed on the ground of superior public interest. The NSW Law Commission has recommended in 2003 for amendment of the Evidence Act, 1995 and Crimes Act, 1900 to allow courts to pass 'suppression' orders in civil and criminal cases. We shall next refer to the Reports of the Law Commission on this question of balancing both fundamental rights.



Trial by Media free speech and fair trial under Criminal Procedure Code, 1973 Back




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