Wade, D. and Faull, B. v. Gilroy, L.J.

[1986] FamCA 6

WADE, D. and FAULL, B. v. GILROY, L.J.

(1986) FLC ¶91-722

Other publishers' citations: (1986) 85 FLR 14 (1986) 10 FamLR 793

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 11 April 1986.

Before: Simpson, Murray and Frederico JJ.

Simpson J.: I have had the advantage of being provided with a copy of the draft judgment of Mr Justice Frederico.

Accordingly it is not necessary for me to set out the facts.

I agree that the appeals of the appellant Faull should be dismissed for the reasons given by my brother Frederico. It is not to the point that I may not have found that the subject brochure constituted a contempt. In my view the trial Judge was entitled to come to the conclusion he did in that regard.

However, with respect, I do not agree that the appeals of the appellant Wade should be dismissed.

In my view a prima facie case was not established against her.

I do not consider that clear admissions of responsibility were made on behalf of the appellant Wade by her counsel in the preliminary discussion referred to in Frederico J.'s reasons for judgment. In the course of that discussion counsel for Wade said:

``But if I may, without admitting that any contempt has occurred, say this: in so far as the respondent may have any relationship with the document, she does not wish in any way to reflect on any member of the bench or the two judges that can be identified that the use of the words referred to by my friend, the fourth judge is influenced, is not intended and in no way does she contend that is reflection on the integrity of that judge.

In so far as the respondent has any connection with the document or the further publication of it that if it is contended by the applicant or the court that that line should be deleted, that it ought to be deleted lest there by any doubt in the minds of the applicant or the public that there is any suggestion of improper influencing, and that the reference to the specific judges in the front of the document, that is, on the scrolls that your Honour will see when the matter is in evidence, ought to be deleted also in so far as it may be possible for someone who has heard the proceedings to identify those as actually occurring despite the fact that the document purports on the face of it to be based on fact and therefore not fact and to be fiction, that if in fact the respondent has done anything which might be construed as contempt of the court, that if the document were further published omitting those references to the judges and that line, that I could not suggest that is not a proper course, the respondent has in fact — sorry, I withdraw that — legal advice I am instructed was sought before this document was compiled, and published, and I am instructed that my client did in fact receive certain advice in relation to it, to the effect that the document was not in contempt of court, and in no way does the respondent Trnka, if the court were of the view that the reference to the judges and the evidence and the reference to that one line constituted a contempt of the court which she wished to pursue publication or do anything to publish those parts of the document, but that otherwise the document constitutes a work of fiction as is expressed, based on fact but not fact, and therefore is capable of being published as any other proceedings before a Family Court in fictional form.''

At a subsequent stage of the discussion the following passages occur:

``His Honour: Well, in essence then [his Honour addressed counsel for Wade], what are you saying? If the applicant is to proceed then you would like the actual words in the brochure to be specified, and if that is so then that will be defended and are you then ready to proceed — or that will depend, I take it, on what the material is that is specified.

Counsel for Wade: The defendant does not wish to protract these proceedings, but the defendant does not wish, if certain parts are alleged to be contemptuous, to proceed with any publication or to have them remain in any document which may be further published, and it may well be from a practical point of view before the court, since the defendant intended no contempt — and I am instructed to say no contempt was intended — and that having sought advice if she has erred in being involved in the publication of the document, has acted in such a way as not to be brought before the court and be dealt with as such that my submission would be, even if the applicant shows his entitlement to bring the proceedings, makes out his contempt, that the respondent is prepared to accept any direction from the court about limiting the document, accepting in my submission that the court cannot just suppress any document because it may reflect on the court. If in fact some specific parts of the document are in the court's view the subject of contempt the respondent is prepared to apologise for any harm that may have been done to the court and it may well be that even if my friend makes out his case that your Honour might then determine that no further sanction, if that apology and the contempt is purged by indicating regret at anything which may seriously affect the court, that your Honour may determine that that is a sufficient — and I would submit that that is a sufficient reason for not proceeding any further with contempt proceedings.

In effect, we say that there is no power here, that there is no contempt, but if the court deems that part of it is in contempt that we wish to say we do not wish to proceed with publication of the offending parts, and wish to apologise to the court for any reflection that may have been apparently improperly made on the court, its judges or the administration.''

It seems to me that, in view of the nature of the proceedings, it would not be proper to find that the statements made by counsel for Wade amounted to an admission of responsibility for the publication of the offending document.

Once that aspect of the matter is disposed of it seems to me that there was simply no evidence admissible against the appellant Wade to establish that she had some part in publishing the document.

I am unable to find any evidence in the document itself to implicate the appellant Wade in so far as the publication thereof is concerned. In my view it would be unsafe to rely on any presumption of ``regularity'' simply because copyright is attributed to the appellant Faull and the appellant Wade in the document itself. In any event I consider that only goes to authorship and does not establish that the appellant Wade was responsible, either alone or jointly with the appellant Faull, for the publication of the document.

Although strictly it may not be necessary to do so I have given consideration to the position of the appellant Wade based on the admission of responsibility for publication made by Faull to the investigating police officer. If the appellant Wade were entitled to rely on the out-of-court admissions made by Faull then any basis for a finding of responsibility on her part for the publication of the document would be without foundation. However, I have come to the conclusion that the appellant Wade is not entitled to rely on the admissions made by Faull.

It must be borne in mind that, on the objection of her counsel, the admissions made by Faull to the investigating police officer were not admitted into evidence against Wade.

I note that in the Australian Law Reform Commission Research Paper No. 15 ``Admissions'' the following passage appears at para. 27:

``Unless an admission can be brought within some other exception to the hearsay rule, it is not admissible against anyone except its maker. Thus, in a joint trial, although an accused's admission is admissible against him, the trial judge warns the jury not to take it into account with respect to any co-accused. It seems that the co-accused may himself adduce the admission if it is favourable to him (although, if the `admission' is itself favourable to the accused, it is not an admission at all, and therefore inadmissible hearsay).''

I have been unable to find any authority in support of the contention contained in the last sentence of the extract from the research paper. The author of that research paper referred me to the articles and the American and Canadian authorities which I mention later.

In an article by Mr Justice Roden of the Supreme Court of New South Wales published in the proceedings of the Institute of Criminology (No. 48 ``Criminal Evidence Law Reform'') the following passages appear:

``(b) Statements by Co-accused

45. Separate consideration can be given to favourable and unfavourable statements in this category. In a case in which A and B are co-accused, A may say, out of court, perhaps to the police, `Yes, I did it, and B was in it with me'. He may say, `Yes I did it, and there was somebody in it with me, but it wasn't B'. The question is for what purpose, if any, either of those statements should be available in B's case.

46. As I understand the law as it is applied in New South Wales, in the case of both favourable and unfavourable statements the answer is that they are inadmissible, and at a joint trial the jury will be directed to disregard them when considering whether B's guilt has been established.''

Also para. 61 of the same article reads as follows:

``61. With regard to the favourable out-of-court statement by a co-accused, there is a passage in the Criminal Law Revision Committee Report which I find intriguing. I find it so in the light of my understanding that such statement is not evidence except in the case of its maker. The passage is in para. 53 under the heading `Confessions'. It reads:

We have no doubt that the rule (i.e. the requirement of voluntariness) applies only to admissibility on behalf of the prosecution and that an accused person may, in order to exculpate himself, give in evidence a confession alleged to have been made by his co-accused, regardless of the methods by which it was obtained.

What is interesting is not what is said about the rule relating to voluntariness, but rather the underlying acceptance of the proposition that one accused's confession, i.e. out-of-court statement, is available to his co-accused as evidence. Eminently reasonable though that may be, it does not, I apprehend, correspond with the view of the common law commonly held and applied in New South Wales.''

The passage from the 11th report of the Criminal Law Reform Committee quoted by Mr Justice Roden does not cite any authority in support thereof. Nevertheless, the membership of that Committee is such that its views would be treated with respect.

In addition to the authorities cited by Faull, namely Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965; Mawaz Khan & Anor v. The Queen (1967) 1 A.C. 454; R. v. Barnett & Anor (1983) V.R. 319; I have also had reference to Fakisandhla Nkambule v. R. (1940) 3 All E.R. 184 and R. v. Spinks (1982) 1 All E.R. 587.

It is suggested that the decision of the Supreme Court at New York in Stauffer Chemical Company v. Costantini (1972) 330 N.Y.S. 2d 90 is authority for the proposition that a co-accused may avail himself of the benefit of an admission made by an accused. I am unable to draw that conclusion from the report of that case.

In Hayhurst v. Innisfail Motors (1935) at D.L.R. 272 the appellate division of the Alberta Supreme Court said:

``Under the Rule a party need not put in more of the examination than he wishes and subject to the right of the Judge to have read any other part so connected with what is put in as being necessary to make its meaning clear he need not be affected by any part of the examination other than serves his purpose, but when he puts in evidence any portion of such examination it becomes evidence and it requires no rule to make it tell against him if it has that effect. He must take the burden, if any there be, with the benefit he receives.

Whether however that burden extends to the benefit of another party is a quite different matter. Evidence in the ordinary way is by viva voce sworn testimony and when such evidence is given at a trial is of course evidence for all parties but evidence given in any other way must be subject to the rule or principle under which it becomes evidence and the rule in question so far as already referred to appears to be dealing only with the issue between the two parties and would have no application to an issue between any other two parties and there would seem no more reason why a third party should get the benefit of evidence so given that that he should be subject to the burden of it.''

Paragraph 804 of Phipson on Evidence (12th ed.) contains the following passage:

``The confession of a third person cannot be used in a prisoner's favour.''

The authority cited in support is R. v. Gray Ir. Cir. Rep. 76. It is a brief report and I set it out in full:

``Samuel Gray's Case.

Indictment for the murder of Owen Murphy. Evidence of a conversation was tendered on the part of the crown. It appeared that the prisoner was in such a position that he might have heard the conversation.

Mr Tomb, for the prisoner, objected and contended that the evidence could not affect the prisoner, unless he took part in the conversation.

Torrens J. held the objection good.

Mr Tomb proposed to give in evidence the dying declaration of Charles Wiley, that he had committed the murder.

Torrens J. — I have always taken it that a declaration to be admissible in evidence must be the declaration of the party injured. I think the evidence tendered is irreconcilable with principle; for the conclusion must be, that if such evidence is admissible in favour of the prisoner, it must be also admissible against him.''

That authority is a single Judge's comment on a general principle.

I have come to the conclusion that both favourable and unfavourable statements in the admissions made by the appellant Faull to the investigating police officer were not admissible for or against the appellant Wade. Even if the favourable statements were admissible in relation to Wade, her counsel expressly chose not to adopt them on her behalf.

I do not consider that there was any evidence — whether direct, by implication, or circumstantial — against the appellant Wade on which the learned trial Judge was entitled to come to the conclusion that, in a relevant sense, she published the offending document.

As Lord Denning M.R. said in Re Bramblevale Ltd. (1970) 1 Ch. 128 at p. 137:

``A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence.''

And in the same case Winn L.J. at pp. 137 and 138 said:

``I agree, and rest my decision on the simple ground, very properly adopted by Mr Stamler in his helpful submission to the court, that unless the guilt of the appellant was proved with such strictness of proof as is consistent with the test `beyond reasonable doubt'; or, as My Lord has more than once put it, consistent with such standard as the court, with its responsibility, regards as consistent with the gravity of the charge — a test which I personally prefer — the decision that he should be imprisoned for contempt of court cannot be sustained. I do not think there was evidence which could justify any court judicially in deciding that this charge was proved beyond reasonable doubt. I have very little sympathy with the appellant; I think he deserved the imprisonment that he has suffered if only on the technical ground that he was late in producing some of the documents. I suspect that his deserved imprisonment can be based more broadly than upon that ground alone. However, the reality of the matter is that the judge sent him to prison on the strength of a presumption, known technically as a presumption of fact — praesumpti facti — that a state of things proved to exist at a certain date must be taken, in the absence of contrary evidence to have continued to exist, for at any rate a period beyond that date reasonable in all the circumstances. That is a presumption which is occasionally useful as a pragmatic weapon in the absence of evidence. However, here it came directly in conflict with another presumption, to which the law of this country attaches quite considerable importance, which is the presumption that a man is innocent until he is proved to be guilty.''

Accordingly I would allow the appeals of the appellant Wade and dismiss the appeals of the appellant Faull.

Murray J.: I have had the advantage of reading the judgments of Mr Justice Simpson and Mr Justice Frederico in this matter and I agree that the appeals of the appellant Faull should be dismissed for the reasons given by Mr Justice Frederico. It is my view, however, that the appeal of the appellant Wade should be upheld.

I am of the view that evidence to implicate the appellant Wade as regards authorship of the document is to be found in the document itself.

It is clear,

(1) that evidence which might have been contradicted by the defendant can be accepted more readily if the defendant fails to give evidence;
(2) that where an inference is open from facts proved by indirect evidence and the question is whether it should be drawn, the circumstances that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference (Jones v. Dunkel (1959) 101 C.L.R. 298 at p. 312).

In my view, however, there was no evidence before the learned trial Judge as to any publication by Wade of the document, and the absence of the defendant Wade as a witness cannot be used to make up that deficiency of evidence (Jones v. Dunkel (supra)).

Publication of the document, i.e. by causing it to be distributed even in a limited way, appears to me to be an essential part of the offence, and there were no facts before his Honour from which he could infer that Wade had participated in such publication. True it is that both Faull and Wade were identified as the owners of the copyright at the last page of the brochure. True it is that sec. 31(1)(a)(ii) of the Copyright Act 1968 gives to the owner of such copyright the exclusive right to publish the work. Having the exclusive right to publish, however, does not in my view necessarily lead to the inference that Wade did so publish. Faull admitted to publication, but Wade did not. I am not of the view that the document itself provides sufficient evidence to prove responsibility for publication against Wade and as a consequence there is a link missing in the chain of proof against Wade.

Counsel for the respondent made a great deal of statements made by Wade's counsel in preliminary discussion referred to in the reasons for judgment of both Frederico J. and Simpson J. Certainly Wade's counsel used the words ``the defendant does not wish... to proceed with any publication or to have them remain in any document which may be further published...'' and went on to say ``if she has erred in being involved in the publication of the document...'', and said again further on, ``we wish to say we do not wish to proceed with publication of the offending party...''. Counsel for the respondent urged upon us that, consequent upon those statements, the learned trial Judge was entitled to infer that Wade appeared to have sufficient control over the publication and contents of the brochure to arrange for it to be amended to delete from it any words which might be deemed by the Court to be contemptuous; ergo, it would be inferred that she bore some real responsibility for the final publication. I reject that submission. A party who wishes to rely upon admissions must be careful not to leave any fact to be inferred from them (Sanders v. Sanders (1881) 19 Ch.D. 373 at p. 380). The authorities lay down fairly stringent rules for the treatment of admissions in both civil and criminal cases. As I read the transcript, Wade's counsel made his statements in the course of submissions on the question of mitigation. If he had made them specifically as admissions, e.g. for the purpose of narrowing the issues, or dispensing with proof at the hearing, then I might regard them very differently. In any event, the inferences that might be drawn from statements of Wade's counsel are at best doubtful or conflicting, there is no particularity in them, and I do not consider it proper for this Court to rely upon them as providing proof, circumstantial or otherwise, of the offence alleged against the appellant Wade. Having that sufficient control, even if one were to read those extracts of the transcript as admissions, is not in my view sufficient to enable an inference to be drawn from these remarks that Wade in fact had participated in the publication of the brochure.

For these reasons I would dismiss the appeals of the appellant Faull and allow the appeal against conviction of the appellant Wade.

Frederico J.: The appellants D. Wade and B. Faull have appealed from the findings of Ross-Jones J. that they were in contempt of court and from the orders made and injunctions granted against them in relation thereto. The respondent to the appeal is L.J. Gilroy, Registrar of the Sydney Registry of the Family Court of Australia.

On 26 June 1985 Gilroy filed an application seeking that the appellants be dealt with for contempt in that each of the appellants were alleged at Sydney between 1 April 1985 and 30 May 1985 to have published a document entitled ``Contempt'' which

``constitutes a serious attack on the Family Court of Australia and tends to scandalise the said Court by insult and defamation and is calculated to impair the confidence of the people in the Court's judgments exciting misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office, and is calculated to deter actual and prospective litigants from complete reliance on the said Court's administration of justice in that the document states that the film or television mini-series therein proposed is firmly based on fact, identifies by name the judge of the said Court who ordered the children to be delivered to the husband in the proceedings and states that judge in making that order was influenced by the wealth and influence of the husband.''

By a second application filed on the same date Gilroy sought restraining orders as to further distribution or publication and delivery up of all copies of the document.

The charges of contempt were dealt with together. The appellants pleaded not guilty. No evidence was called on their behalf.

His Honour found the appellants in contempt on 26 July 1985 and adjourned the matter for submissions on the question of punishment. On 13 September 1985 he made orders restraining the appellants from further publication or distribution of the document, requiring them to retrieve copies already distributed and to enter into a $2,000 bond to be of good behaviour and to comply with the aforesaid restraining orders. Orders were also made against them for costs.

``Contempt''

The document ``Contempt'' is a sophisticated illustrated brochure of some 20 pages designed to promote a ``television mini-series from Australia''.

The title page depicts a grotesque monkey-like effigy of a bewigged judge overlooking a desk on which are lying wads of high denomination bank notes, a photograph of two children, and a whip.

On following pages there is a purported extract from a finding of a named Judge of the Family Court of Australia holding that a female person was on contempt and directing that she remain in custody until she purged her contempt. On p. 5 there is a drawing depicting a woman lying on the ground with a man standing over her, with a Rolls-Royce motor car and a windmill in the background with the following printing:

``CONTEMPT is a love story, an adventure story, a story of compassion and tenacity triumphing over hate and selfishness.

CONTEMPT is about a woman raised in the Australian outback who, at great personal cost and against extraordinary odds, defies two men of wealth and influence, and the judiciary of three countries, for the right to live with her own children.

CONTEMPT is based on fact. It is the story of two custody battles — one the largest Australia has known, the other the longest.''

There follows a further purported extract from the judgment of the aforesaid Judge, a sketch of a woman behind prison bars, and the statement that the events ``are not the inventions of gifted writers''.

Later there is an illustration of a judge looking down on a roll of paper which purports to record an order of 14 October 1983 attributed to another named judge of the Court reading as follows:

``I order that a warrant issue authorising the Deputy Marshal of the Family Court of Australia, the Commissioner of the Australian Federal Police, the Commissioner of the New South Wales Police, and all officers of both those forces, to take possession of the children... and deliver the said children to the husband in these proceedings pursuant to an order for custody in his favour made on 3 October 1975...''

On subsequent pages the following editorial writings appear:

``The Writers of Contempt. Contempt is firmly based on fact. The initial development work, including the writing of the story outline, has been by D. Wade and B. Faull''; ``The story of `contempt'... Within days she is caught up in a legal maelstrom as the case is passed from judge to judge and O [the father] uses all his wealth and influence to regain his sons. And the fourth judge is influenced. He order that the boys should be apprehended by the police and returned to the custody of the father...''; ``contempt — The Quality Mini-Series for your Network... Contempt, based as it is on fact...''

Finally, copyright is attributed to each of the appellants.

The parties

Gilroy, the respondent to the appeal, is the Registrar of the Family Court of Australia, Sydney Registry, and brought the applications in that capacity. The appellant D. Wade (formerly D. Trnka) was a party to a long-running dispute as to child custody in the Sydney Registry. The appellant B. Faull is a film and television producer.

At the outset it should be noted that no exception was taken as to jurisdiction, which is to be found from sec. 108 of the Family Law Act, nor as to Gilroy's right to bring the application as Registrar.

Although O. 34 r. 7 of the Family Law Rules would not seem to apply to the situation in the present case, O. 34 r. 2 empowers any person to file an application for contempt of court. It is not necessary that such person should otherwise be a party to the proceedings. Whilst there is much to commend, in the English practice whereby since 1954 the Attorney-General has accepted the responsibility of receiving complaints of alleged contempt of court and of making an application in his official capacity if justified in the public interest, a party aggrieved retains the right to bring before the Court any matter which he alleges amounts to contempt (Attorney-General v. Times Newspapers (1974) A.C. 273 at pp. 293, 311). Thus in Morrison v. John Fairfax & Sons (1945) 54 C.A.R. 716 proceedings for contempt were brought by the Deputy Registrar on the direction of the Court for contempt of the Commonwealth Court of Conciliation and Arbitration. (The Court's order was set aside by the High Court on other grounds (see (1945) 51 A.L.R. 297).)

It is clear that Gilroy was entitled to bring the application, and that the Court had jurisdiction to deal with it.

I then turn to examine the appeals. As many of the appeal points relate to both appeals, I do not intend to differentiate between the respective appellants other than where necessary.

The title to the proceedings

The first matter for consideration relates to the title of the proceedings that of the proceedings in the Sydney Registry in relation to the Trnka marriage. At the outset of the proceedings before the primary Judge it had been submitted by counsel on behalf of the appellant Wade that there was no relationship between the contempt proceedings and the Trnka proceedings. His Honour took the view that this was merely a ``procedural matter'' of ``no real significance'' but that in any event the proceedings were properly entitled. The point was taken on the hearing of the appeal by counsel on behalf of the appellant Faull that it was a matter of substance rather than form, particularly as relating to his client, who was not in any way involved in the Trnka proceedings.

In my view there is strength in the submission that there is insufficient nexus between these proceedings and the proceedings in the Trnka marriage for the title of the Trnka proceedings to have been adopted. The current proceedings relate to scandalising the Court, not to proceedings such as enforcement proceedings in the Trnka marriage. That the former Mrs Trnka is a party to proceedings is only of indirect relevance. The situation is thus distinguishable from that in O'Shea v. O'Shea and Parnell (1890) 15 P.D. 59, and Re B (J.A.) an Infant (1965) 1 Ch. 1112. In the latter case Cross J. observed at pp. 1117-1118 that as contempt is a serious matter, safeguards should be observed, or otherwise the process is defective.

Although I accept the submission that the proceedings are not properly entitled, the error does not appear to me to be a matter of substance. I agree with his Honour's view that it was merely a procedural matter. I fail to see any real or potential prejudice to the contemnors. It appears to me to be a deficiency of form rather than substance, and as Cross J. said in Re B (J.A.) (supra) there should be no reason why a court should be any slower to waive such technical irregularities in contempt proceedings than in any other proceeding.

Unfortunately the forms under the Family Law Rules do not provide for an appropriate heading. However, strict compliance with such forms is not necessary (O. 2 r. 5(1)). In my view it would be desirable, if not strictly necessary, even at this late stage for the title to the proceedings to be amended to specifically relate to the particular matter in a form commonly used for originating applications in civil courts. Otherwise the irregularity should be waived.

Particulars

A further ground argued was that it was unclear at the commencement of the evidence as to what was the precise charge and that an injustice had thus occurred.

There is a long line of authority as to the right of defendants to particulars. Evatt J. said in Johnson and Miller (1937) 59 C.L.R. at p. 497 that:

``It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him.''

In Appuhamy v. The Queen (1963) A.C. 474 the House of Lords said:

``It was clearly established in Inre Pollard (1868) L.R. 2 P.C. 106, on a reference to the Judicial Committee of the Privy Council, that no person should be punished for contempt of court, which is a criminal offence, unless the specific offence charged against him be distinctly stated and an opportunity of answering it given to him.''
(per Dilhorne L.C. at p. 483).

Thus a conviction for perjury was quashed on the ground of insufficiency of particulars as to the matters on which false evidence had been given. See also R. v. Magistrates' Court at Heidelberg & Ors; Ex parte Karasiewicz (1976) V.R. 680 and cases therein cited.

The issue in the present case arose in the context of what portion of the document was relied upon by Gilroy as constituting the contempt.

In this regard the application gave particulars:

``... in that the document states that the film or television mini-series therein proposed is firmly based on fact, identifies by name the judge of the said Court who ordered the children to be delivered to the husband in the proceedings and states that that judge in making that order was influenced by the wealth and influence of the husband.''

When the issue was raised prior to evidence being given before the primary Judge, counsel then appearing on behalf of Gilroy said:

``I indicate that the words which we submit constitute the contempt in the present case can be encapsulated in this formula which I have shown to my learned friends: that each respondent did in the context of a document entitled, Contempt, publish the following words of a judge of the Family Court of Australia, `and the fourth judge is influenced'. I should make it plain immediately, your Honour, that in encapsulating the charge in that way we are doing, in our submission, no more than crystallising the charge which is fully and, in our submission, properly set out in the application itself.''

Further discussion then ensued and in the result the charge as read by his Honour was in the terms of the application itself which is set out above, to which each of the appellants pleaded.

In the course of his reasons for finding the appellants in contempt the primary Judge said as follows:

``Reading and perusing the Brochure as a whole, together with the particular instances therefrom to which I have already referred, such Brochure contains a clear statement that the husband used all his wealth and influence and influenced the fourth Judge to return the children to him. — J. is clearly indicated as the Judge who made the order to return the children to their father on a specified date. But in any event, whether a Judge was identified or not, I am satisfied that the whole tendency and object of the Brochure is to disparage the authority of the Court and to weaken confidence in it.''

In my view the particulars given in the application constituted adequate particularisation of the charge against the appellants. That was the charge of which they were orally informed by his Honour in accordance with his duty under O. 34 r. 5(a) of the Family Law Rules. I do not see any reasonable room for confusion in the minds of the appellants or their legal representatives. In his statement quoted above and discussion subsequent thereto, leading counsel for Gilroy was seeking to encapsulate the nub of the alleged offence, namely the statement that a judge had been influenced. But he was doing so expressly in the context of the document as a whole. If there was any confusion caused thereby (and I do not see that there should have been confusion) then it should have been overcome by the charge as read out by his Honour. Accordingly I reject the grounds of appeal relating to this issue.

The contempt

In dealing with a number of grounds of appeal as to whether the matters complained of were capable of bearing the meaning attributed by his Honour, and that his Honour was in error in finding that they constituted contempt, it is patent that his Honour was required to look at the issue in the context of the whole document, rather than by taking the actual words out of context. In my view his Honour correctly proceeded on the basis that the document as a whole was of a derogatory nature, which was obvious indeed from the illustration on the title page of itself.

On a fair reading, the brochure contains the assertion that a judge has been influenced by a litigant of wealth and influence. By necessary inference, that Judge is a named Judge of this Court. But in the present case the naming of the Judge is not of any particular relevance. It would be of importance were the Judge to bring a civil action in relation to the publication. But as the story is claimed to be based on fact, the brochure appears to me to be scandalous of the Court as a whole irrespective of whether or not the Judge was actually named.

Quite apart from the standards of conduct expected by the community of its judges in the administration of justice, each judge of the Family Court of Australia has taken an oath or affirmation to ``do right to all manner of people according to law, without fear or favour, affection or ill-will'' (Family Law Act sec. 26).

``Influence'' may of course have an innocent meaning. But in the present case it would not seem to matter whether his Honour had referred to the Macquarie Dictionary (as he did), the Oxford Dictionary, or whether he had not referred to any dictionary at all. His Honour was quite correct in finding that the allegation in the context was of a scandalous nature.

Thus in Gallagher v. Durack (1983) 152 C.L.R. 238 at pp. 243-244 the majority of the High Court held that the statement by a prominent union official:

``that he believed that the actions of the rank and file of the Federation had been the main reason for the court changing its mind can only mean that he believed that the court was largely influenced in reaching its decision by the action of the members of the union in demonstrating as they had done. In other words, the applicant was insinuating that the Federal Court had bowed to outside pressure in reaching its decision. It is fundamental that a court must decide only in accordance with the evidence and argument properly and openly put before it, and not under any outside influence.''

Scandalising the court

Scandalising the court has long been recognised as a form of contempt of court. The ``classic definition'' is that of Lord Russell of Killowen C.J. in R. v. Gray (1900) 2 Q.B. 36 at p. 40:

``Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt or to lower his authority, is a contempt of Court.''

(See Badry v. D.P.P. (Mauritius) (1983) 2 A.C. 297 at p. 303.) A publication which scandalises the court is one which impugns the impartiality of the court or its officers (Borrie and Lowe, Law of Contempt, 2nd ed., 1983 at p. 229). In R. v. Dunbabin; Ex parte Williams (1935) 53 C.L.R. 434 at p. 442 Rich J. said:

``Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the matter in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained.''

The courts will readily conclude that an allegation of judicial bias is bound to have a significant effect on public confidence sufficient to constitute the offence. None the less it must be viewed in the circumstances of the particular case.

In the same way as consideration was given in Gallagher v. Durack (supra) ``that the contemnor was a union leader very well known to the Australian public thus lending credence to the allegation'', in the current case it would be appropriate to have regard to the sophisticated nature of the brochure designed for circulation to influential members of the electronic media as relevant to the finding.

True it is that a court may prefer to maintain a dignified silence when under unwarranted attack (see for instance The Queen v. Commissioner of Police of the Metropolis; Ex parte Blackburn (No. 2) (1968) 2 Q.B. 150 and the statement of the Privy Council in McLeod v. St Aubyn (1899) A.C. 549 at p. 561:

``Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.''

(Cited with approval by Starke J. in John Fairfax and Sons v. Morrison (supra).) But as Dixon J. said in R. v. Dunbabin (supra):

``It is important that Courts should be the subjects of free criticism. It is equally important that the dignity and authority of the Courts should be maintained.... I think that, if a repetition of the kind of imputations made in the present case were allowed, public confidence in the Court would in the end be undermined.''

Mens rea

The appellant relied upon further grounds of appeal relating to intent. It was submitted that one of the ingredients of the offence to be established by the prosecutor was that the appellants had intended to scandalise the Court. Particular emphasis was placed upon a statement of the appellant Faull given in evidence by the investigating police officer that legal advice had been obtained by the appellants prior to production of the brochure.

In John Fairfax & Sons Pty. Ltd. v. McRae (1955) 93 C.L.R. 351 at p. 371 Dixon C.J., Fullagar, Kitto and Taylor JJ. said:

``The actual intention or purpose lying behind a publication in cases of this kind is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published. But intention is always regarded by the court as a relevant consideration, its importance varying according to circumstances.''

In adopting that dictum, Glass J. in Attorney-General (N.S.W.) v. Mundey (1972) 2 N.S.W.R. 887 at p. 911 pointed out that in some forms of contempt, intention is obviously of decisive importance. However his Honour held that in the circumstances then before him:

``the question whether the defendant's statements constituted contempt must be determined by reference to their inherent tendency to interfere with the administration of justice.''

(See also R. v. Editor of New Statesman; Ex parte D.P.P. (1928) 44 T.L.R. 301.) It would seem that his Honour thus correctly stated the law and that his statement is applicable in the circumstances of the present case.

Intention to publish may be an element of the offence (State (D.P.P.) v. Walsh (1981) I.R. 412). From the reference by the High Court in Gallagher v. Durack (supra) at p. 244 to the offending statement having been made at an unexpected interview, it would seem that lack of forethought might be an exculpatory circumstance. And intent is always relevant as to penalty (R. v. Editor of New Statesman (supra)).

The situation as to the relevance of intent might not be quite clear in England (cf. Attorney-General v. Butterworth (1963) 1 Q.B. 696 at p. 722; R. v. Oldhams Press (1957) 1 Q.B. 73 at p. 80; Mcleod v. St Aubyn (1899) A.C. 549; Perera v. R. (1951) A.C. 482). See also Solicitor-General v. Radio Avon Ltd. (1978) 1 N.Z.L.R. 225 at pp. 231-233. But the situation in Australia is clear, and in my view his Honour correctly had regard to the inherent tendency of the publication.

The yellow sheets

It is unnecessary for me to consider the ground of appeal raised by the appellants relating to the ``yellow sheets''. The yellow sheets referred to are filled out by the Judge's secretary in the capacity of Judge's associate and are relied upon in the Sydney Registry as a record of proceedings, similar to an associate's certificate in other jurisdictions.

They were admitted into evidence by the primary Judge as tending to establish the order allegedly made by the identified Judge as being that in the brochure. In my view it is irrelevant whether that Judge in fact made the order or not. Thus, although the admission into evidence of the yellow sheets may be justified according to the rules of evidence or on the practical ground of the Court informing itself of its own process, in the end result they become irrelevant. No prejudice was caused to the appellants by their admission into evidence.

The case against Wade

It has been submitted by counsel on behalf of the appellant Wade that there was insufficient evidence to establish that she was implicated in the publication of the brochure. This argument was not available to the appellant Faull in view (inter alia) of unchallenged admissions which he had made when interviewed by an officer of the Federal Police. But Wade was not interviewed and made no admissions. The duty of the prosecution to prove all elements of the offence is discussed in May v. O'Sullivan (1955) 92 C.L.R. 654.

The evidence against the appellant Wade was conceded at the hearing to be ``somewhat sketchy''. When a prima facie case was found against her she made no answer thereto. But it was not incumbent upon her to do so. However, when ``the nature of the case is such as to admit of explanation or contradiction if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends''? (R. v. Burdett (1820) 4 B. & Ald. 95.) Notwithstanding that, the burden of proof of guilt beyond reasonable doubt rests on the prosecution from first to last (May v. O'Sullivan (supra)).

Evidence to implicate the appellant Wade is to be found from the document itself. Not only does the document purport to relate to her personal experiences but copyright is attributed to the appellant Faull and herself and authorship is thus implied. Prima facie this is an admission. It would be an offence against the provisions of sec. 190 of the Copyright Act 1968 to falsely attribute copyright. ``If it were necessary the presumption of regularity could also, I think, be called in aid.'' (Per Stephen J. in R. v. City of Doncaster and Templestowe; Ex parte Mayor (1971) V.R. 466 at p. 473. See also R. v. Arrowsmith (1950) V.L.R. 78.)

Further, in discussion as to mitigating circumstances after the commencement of the hearing, her counsel on her behalf made statements which constitute admissions as to her control over the content and publication of the document. The fact that she took legal advice prior to publication was advanced as a mitigating factor. It is clear that the document was designed for publication and was in fact published. In these circumstances it was quite open to his Honour to draw the necessary inference of guilt notwithstanding that she may not have personally distributed it. (See generally R. v. Evening Standard Co. (1954) 1 Q.B. 578.)

Counsel for the appellant Wade sought to rely on statements made by the appellant Faull tending to exculpate the appellant Wade which appeared in an affidavit of a Federal Police officer which was tendered as evidence against Faull. However, the doctrine of hearsay prevents such statements being treated as evidence upon which she could rely. (See Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965; Mawaz Khan & Anor v. The Queen (1967) 1 A.C. 454; R. v. Barnett & Anor (1983) V.R. 319.) A different situation could apply had she given evidence adopting Faull's statement, or had the applicant relied upon it as evidence against her. But she did not adopt Faull's statement and her counsel successfully objected to its admissibility as evidence against her, so that she cannot now seek to rely upon it.

In my view it was open to his Honour to find, as he did, a prima facie case against the appellant Wade, and when she made no answer to find the charges proved against her.

The penalty

Finally it is argued on behalf of the appellants that the penalty imposed by his Honour was excessive. I reject such argument. It was a serious offence. The penalty imposed appears to be designed not only as an admonition but to prevent a repetition (R. v. Dunbabin (supra)). His Honour acted clearly within his powers in granting the injunctions.

It would appear from the moderate nature of the penalty that his Honour took into account mitigating factors relied on by the appellants including their statements as to having sought legal advice prior to publication, and by way of apology. It may appear indeed that his Honour gave more weight than was appropriate to the apology of the appellant Faull, as the apology itself was couched in disparaging terms.

The appellants claimed to have sought legal advice to satisfy themselves that the publication was not one to which proper exception could be taken. Their legal adviser was not called in support of this claim. I find it surprising that such advice could have been given in relation to a document which could so clearly attract not only proceedings by way of scandalising the court, but also proceedings for defamation. But irrespective of that, I am not persuaded that his Honour erred in his discretion in the penalties which he imposed.

In my view both appeals should be dismissed.