Report No. 200

"Freedom of Speech v. Due Process of Law

2.4: There is no doubt that freedom of expression is one of the hall-marks of a democratic society, and has been recognized as such for centuries. (Numerous great political and intellectual figures, Burke, Paine, Jefferson and Mill, to name a few - have been associated with this principle.) Freedom of public discussion of matters of legitimate public concern is, in itself, an ideal of our society: Hinch v. Attorney General: (1987) 140164 CLR 15(57) Deane J). Justice Mahoney, in Ballina Shire v. Ringcanol: (1994) 33 NSWLR 680 (720) spoke of the ends which are achieved by the capacity to speak without fear and reprisal and the importance of these ends in a free society: "ideas might be developed freely, culture may be refined, and the ignorance or abuse of power may be controlled".

2.5: However, freedom of speech cannot be absolute. In legal, political and philosophical contexts, it is always regarded as liable to be overridden by important countervailing interests, including state security, public order, the safety of individual citizens and protection of reputation.

2.6: One such countervailing interest is due process of law. Freedom of speech ought not to take precedence over the proper administration of justice, particularly in criminal trials where an individual's liberty and/or reputation are at stake, and where the public have an interest in securing the conviction of persons guilty of serious crime. Indeed, the belief that the public interest in a fair trial will always outweigh the public interest in freedom of expression, generally goes unchallenged.

Therefore, a discussion of how to reconcile these competing public interests proceeds on the basis of acceptance of this notion. The question to resolve, then, is whether justice can be done, as well as seen to be done, in the absence of sub-judice liability. If the answer is no, then, sub judice rule is essential to achieving the proper balance between the competing interests, the question must then be asked whether the operation of the sub judice rule restricts freedom of speech more than necessary to ensure a fair trial".

The Commission then refers (in para 2.7) exclusively to the case law relating to the 'Legal Protection of Expression' - Theophanous v. Herald Weekly Times Ltd: (1994) 182 CLR 104, Lange v. Australian Broadcasting Corpn: (1997) 189 CLR 520 in which it was stated that while freedom of expression was basic, it was not absolute. In Attorney General v. Time Inc Magazine Co Pte Ltd: (NSW Appeal 40,331/94 dated 15.9.1994) the NSW Court of Appeal observed that the Common Law principles have been established as a result of a balancing of competing interests, namely, the public interest in freedom of expression and the public interest in the administration of justice.

The NSW Court also stated that freedom of expression is not unconditional. "Expression can, for legally relevant purposes, be free even though it is subject to other legitimate interests" (ibid, Gleeson, CJ). The Commission referred (see paras 2.13 to 2.15) to Article 19(2) of the International Covenant of Civil and Political Rights which permits restriction on freedom of speech and expression for various purposes and stated:

"Furthermore, Article 19 of the ICCPR is made subject to Article 19(1) which guarantees the right to individuals to a 'fair hearing by a competent, independent and impartial tribunal".

The Commission referred (see paras 2.16 to 2.19), to the 'Principle of Open Justice' which again is not absolute and it stated (see para 2.18) that "media can effectively perform this 'watch dog' role, promoting discussion of courts and the justice system, 'without publishing the most obviously prejudicial material specifically relevant to a case'.

The Commission dealt with (see paras 2.20 to 2.22) the Rules of Evidence, about the presumption of innocence until proven guilty beyond reasonable doubt as a basic tenet of criminal procedure. Rules of evidence exclude opinion evidence, allegations as to the general character or credibility of an accused, confessions which are not established as voluntary, prior conviction or prior conduct. Such inadmissible evidence cannot be introduced through the back door.

The Commission referred (see paras 2.23 to 2.26) to the principle that 'Justice must be seen to be done'. Due process of the law encompasses not only the right to a fair trial, but also the preservation of public confidence in the administration of justice. 'Justice should not only be done but must be seen to be done' R v. Sussex Justices; Ex Parte Mc Carthy: (1924) 1 KB 256 (259). In this way, public confidence in the administration of justice is maintained. If the media publishes prejudicial material or wages a campaign, not only it may affect criminal adjudication but if it does not, public may see and the accused may believe that justice is not done. Such material can also influence witnesses.

It referred (see para 2.27) to 'time limits' and stated that a publication will constitute a contempt under the sub judice rule, if it relates to proceedings which are current or pending. For example, material concerning a particular crime, which is published before anyone has been arrested or charged with the crime, will not constitute a contempt, even if it later turns out to be prejudicial to the trial of the accused.

The Commission referred (see para 2.30) to several points raised by critics of prohibition of publication after arrest or after charge is filed on the ground that there is no empirical evidence of influence on Jurors or that some publications fade away in public memory when there are delays in the trial; that people mistrust what is published in the media etc. (In some countries like US, potential jurors are initially examined in large number to elicit if they admit they have already been influenced by the media publicity and if they admit, they are excluded.) There can be conscious or unconscious influence based on appearance, race, religion, sect,cultural attributes, or by publicity as to prior convictions, alleged confessions etc. The Commission stated (see para 2.35):

"However, what the sub judice rule seeks to do is to filter out the most damaging of prejudicial effects so that views formed prior to the trial or from extrinsic sources during the trial, are not held strongly that they cannot be displaced by the evidence which is presented and tested in the courtrooms, as well as by judicial directions and instructions on the law and submissions by counsel on that evidence.

It seeks to suppress only that material which, in accordance with the present Common Law test, has a real and definite tendency, as a matter of practical reality, to prejudice legal process or on a reformulated test, creates a substantial risk that the fairness of the proceedings would be prejudiced. Furthermore, suppression is for a limited time only and liability for contempt is only sheeted home where any of the grounds of exoneration (discussed below) are not available."

Under the head of defences, are the following:

that the person who published did so bona fide without knowing or believing it is prejudicial or after becoming aware, took steps to prevent publication or that they had taken reasonable care. There can be matters of public interest which require publication. Public safety could also be a reason.

The Commission gave specific examples of media publicity (see para 2.45) which can cause prejudice:

(i) a photograph of the accused where identity is likely to be an issue, as in criminal cases;

(ii) suggestions that accused had previous convictions, or has been charged for committing an offence and/or previously acquitted, or has been involved in other criminal activity;

(iii) suggestions that the accused has confessed to committing the crime in question;

(iv) suggestions that the accused is guilty or involved in the crime for which he or she is charged or that the Jury should convict or acquit the accused; and

(v) comments which engender sympathy or antipathy for the accused and/or which disparage the prosecution or which make favourable or unfavourable references to the character or credibility of the accused or a witness.

Each of these is discussed in detail (see paras 2.46 to 2.54) though the Commission refers (see para 2.52) to the Common Law assumptions that (while Jury may be influenced), Judicial Officers are not. (A view which has not been accepted in India, as detailed in Chapter III of our Report and also not accepted by the House of Lords also as stated elsewhere.)