Report No. 200

Final Report of NSW Law Reforms Commission (2003):

In the Final Report of the NSW Law Reforms Commission, it was stated in (Chapter 2 para 2.5) (Freedom of Speech v. Due Process of Law) that "measures which are necessary for due process of the law take precedence over freedom of speech". It referred to Brennan J in R v. Glennon: (1992) 173 CLR 592 and stated that while the two rights have to be balanced, the integrity of the administration of criminal justice is fundamental.

Other Law Commission Reports referred to by the NSW Law Commission. The NSW Law Commission also referred to the Report of the New Zealand Law Commission (Preliminary Paper 37 on Juries in Criminal Trials, Part II [Vol 1, p.289] ) that:

"When a conflict arises between fair trial and freedom of speech, the former prevailed because the compromise of fair trial for a particular accused will cause them permanent harm .... whereas the inhibition of media freedom ends with the conclusion of legal proceedings".

and to Michael Kirby J's observations in John Fairfax Publications Pty Ltd v. Doe: (1995) (37 NSWLRC 81) that it would be unthinkable to allow destroying the essential power and duty to protect fair trial of persons accused of crimes.

In Chapter 4 the NSW Law Commission dealt with prejudice in criminal proceedings and in Chapter 7 with time limits and 'imminence'

In relation to criminal proceedings, it recommended (see para 7.12) that "sub judice period commences from the time the process of law has been set in motion for bringing an accused to trial. It stated that issue of warrant need not be the starting point because arrest may be delayed and that it is sufficient to say 'arrest of the accused' rather than 'arrest without a warrant'. Recommendation 13 was as follows:

"13. Legislation should provide that, for purposes of sub judice rule, criminal proceedings should become pending and the restrictions on publicity designed to prevent influence on juries, witnesses or parties should apply, as from the occurrence of any of these initial stages of the proceedings:

(a) the arrest of the accused;

(b) the laying of the charge;

(c) the issue of a court attendance notice and its filing in the registry of the relevant court; or

(d) the filing of an ex officio indictment.

Schedule 1 (clause 4) of the NSW Bill, 2003 incorporates this provision.