Report No. 200
(5) Police activities:
We have already referred to AG (NSW) v. Dean: (1990) NSWLR 650 (under the heading publication of confessions) how a disclosure by police of an alleged confession after arrest was held to be contempt. Borrie & Lowe (1996, 3 rd Ed p 151) refer to activities of police which can also amount to contempt. They say "It can be perfectly proper to publish references to police activity surrounding a crime, such as the various searches, questioning of suspects and any arrest that may be made but it should not be thought that there is an automatic immunity in so doing."
In an Australian case, R v. Pacini, (1956) VLR 544, for example, a radio station was held to have committed a contempt by broadcasting, at a time when the accused was awaiting trial, an interview with a detective who had been concerned with the arrest of the accused, in which it was intimated that the detective's investigation had been brought to a successful conclusion with the accused's arrest, the implication being that the accused was guilty.
In AG (NSW) v. TCN Channel Nine Pty Ltd: (1990) 20 NSWLR 368, in the case of a murder of two women and a child at two distant locations, the suspect surrendered to the police, was interviewed, confessed and was then taken to the scenes of the crimes by the police where he demonstrated various significant matters to them. On these visits, the police and the suspect were accompanied by a journalist including television crews. At one point, the television crew travelled in the same aircraft with the suspect and the police, to the scene of the crime.
The police held a press conference at which it was announced that the suspect had confessed. These matters were all broadcast on television news. The NSW Court of Appeal stated that the tendency of this publication was to create a risk of prejudice to the accused at the trials (which did not take place ultimately since the accused committed suicide while in custody) and was not lessened because of the very strong evidence against the accused. The Court of Appeal observed (p 382):
"A notion that the rules relating to contempt of court somehow apply with less rigour to the case of a person against whom there is a very strong case would reflect a fundamental misunderstanding of the nature and purpose of those rules".
The contempt was not also lessened because of the role of the police in encouraging the publicity. The Court of Appeal said (p 381):
"as a general rule, we regard it grossly offensive to the principles embodied in this aspect of the law, and to the proper administration of justice, for police to display for the benefit of the media, persons in the course of being questioned or led round the scene of a crime".
Borrie and Lowe refer to R v. Carochhia: (1973) 43 DLR (3d) 427 (Quebec CA) from Canada where a police officer was held guilty of contempt for issuing a press release to charges that had been brought against a particular company and stating that more charges were to come and generally linking the accused company with organized crime.
The authors say that these cases are 'a salutary warning' to the police both with respect to their press releases and to the access they give to the media. In England, there have been occasions in which the police have overstepped the mark of prudence (though no prosecution has even been brought), the most notorious example being the 'euphoric' press conference held by the police following the arrest (on other charges) of Peter Sutclifee who was later charged with being the so called 'Yorkshire ripper'.
There was much concern over the treatment of Sutcliffe's arrest but it was the press, rather than the police themselves, who bore the brunt of the criticism, no doubt because of the subsequent behaviour of the press over the case. The authors say that "Irrespective of the responsibility that lies on the police, the media themselves have a responsibility that reliance on a police press release will not be a defence to charges of contempt brought against them, if their publication is held creative of real risk of prejudice" (as in AG (NSW) v. TCN Channel Nine News Pty Ltd (1990) 20 NSWLR 368).
The authors refer to a Scottish case for highlighting the facts which the press has to take into account in describing police operations. In HM Advocate v. George Outram & Co Ltd: 1980 SLT (Notes) 13 (High Court of Justiciary), the Glasgow Herald was fined 2000 Pounds for publishing the headline "Armed Raids Smash Big Drugs Ring in Scotland", giving a detailed account of the arrest and police operations. In holding the article to be contempt, the newspaper was said to have published alleged evidence of highly incriminating character tending to suggest that the guilt of the accused might be presumed.
It may not be contempt if the publication is intended to warn public at the instance of the police that a notorious criminal had escaped and public have to be careful or watch out for him. (see p 170 of Borrie & Lowe)
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