Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Independent Newspapers (Ireland) Ltd. & Ors [2005] IEHC 128 (3 May 2005)
URL: http://www.bailii.org/ie/cases/IEHC/2005/H128.html
Cite as: [2005] IEHC 128, [2005] 2 ILRM 453
[New search] [Help]
[2005] IEHC 128
THE HIGH COURT
2005 No. 6 MCA
IN THE MATTER OF A CONTEMPT OF COURT
AND IN THE MATTER OF AN APPLICATION PURSUANT TO ORDER 44
BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
AND
INDEPENDENT NEWSPAPERS (IRELAND) LIMITED
AND GERARD O'REGAN AND ANNE-MARIE WALSH
RESPONDENTS
Judgment of Ms. Justice Dunne delivered the 3rd day of May, 2005.
This is an application by way of notice of motion for an order directing the attachment and committal and/or sequestration of the assets of the respondents for contempt of court in respect of material exhibited in the affidavit of John Forde sworn herein on 1st February, 2005 on behalf of the applicant herein.
The application also seeks to restrain the respondents from further publishing material calculated to interfere with the trial process in being between the applicant and one Patrick O'Dwyer.
The notice of motion herein was stated to be grounded upon the following:
"The said material was calculated to interfere with the course of justice and the trial process then in being between the applicant and Patrick O'Dwyer and to prejudice the fair trial of the said Patrick O'Dwyer. Furthermore, the said publications took place subsequent to the criminal charge preferred against the accused and to his remand in custody and in breach of the sub judice rule and contained details in respect of the remand hearing before Ennis District Court on 1st December, 2004, which further amounted to a contempt of court."
As appears from the said affidavit of John Forde, Patrick O'Dwyer appeared before the District Court in Ennis on 1st December, 2004, having been charged with the murder of Marguerite O'Dwyer, his sister, on 29th November, 2004. Following his appearance in the District Court, the said Patrick O'Dwyer was remanded in custody to St. Patrick's Institution.
On 2nd December, 2004, a number of articles were published in the Evening Herald, a newspaper published by the first named respondent, edited by the second named respondent and which articles were attributed to the third named respondent.
I do not propose to set out in detail the contents of the said articles but suffice to say that one of the articles purported to describe in detail the nature of the assault upon the deceased and the manner in which she met her death. Two further articles in the same edition of the Evening Herald purported to describe the family of the deceased and the accused, including comments about them from members of the local community. One of the articles appeared to give an account of details arising from the post-mortem examination of the deceased by the State Pathologist.
Finally, John Forde at para. 6 of the said affidavit deposed as follows:
"I say and believe that the aforesaid publications were calculated to interfere with the course of justice and the trial process and to prejudice the fair trial of the said Patrick O'Dwyer. Furthermore, the said publications took place subsequent to the criminal charge preferred against the accused and to his remand in custody and in breach of the sub judice rule and contained details in respect of the remand hearing before Ennis District Court on 1st December, 2004 which further amounted to a contempt of court."
A replying affidavit was sworn by Paula Mullooly on behalf of the respondents. In the course of the said affidavit the deponent exhibited a number of newspaper articles published in and about the same time as the reports complained of in these contempt proceedings. The same were exhibited for the purpose of "placing [them] before the court".
In opening this application on behalf of the D.P.P. it was argued that the articles complained of, taken together, clearly contain a belief as to the guilt of the young man charged with the murder of the deceased, his sister. It is submitted that the clear underlying message of the articles is that Patrick O'Dwyer was responsible for the death of his sister and accordingly it is submitted that the respondents are guilty of contempt of court.
In the course of his submissions on behalf of the D.P.P., Mr. McDonagh, S.C. referred to the Law Reform Commission's consultation paper on contempt of court. He referred to the pre-judgment test referred to therein at p. 73, a test adopted by the House of Lords in the case of A.G. v. Times Newspapers Limited [1974] A.C. 273, wherein it was stated by Lord Cross as follows:
"It is easy enough to see that any publication which prejudges an issue in pending proceedings ought to be forbidden if there is any real risk that it may influence the tribunal, whether judge, magistrates or jury, or any of those who may be called on to give evidence when the case comes to be heard. But why it may be said, should such a publication be prohibited when there is no such risk. The reason is that one cannot deal with one particular publication in isolation. A publication prejudging an issue in pending litigation which is itself is innocuous enough may provoke replies which are far from innocuous but which as they are replies, it would seem unfair to restrain. So gradually the public would become habituated to, look forward to, and resent the absence of, preliminary discussions in the media of any case which aroused widespread interest. An absolute rule – though it may seem to be unreasonable if one looks only to the particular case – is necessary in order to prevent a gradual slide towards trial by newspaper or television."
That case was found to be in breach of article 10 of the European Convention on Fundamental Rights and Freedoms. At p. 74 of the consultation paper it is noted that in The State (Walsh) v. D.P.P. [1981] I.R.412 at 440, Henchy J. observed that there was a presumption that our law on contempt is in conformity with the Convention. The Convention has become directly applicable in this jurisdiction and in that respect matters have moved on since the judgment of Henchy J.
Counsel on behalf of the applicant herein also referred to the decision in Attorney General (New South Wales) v. John Fairfax & Sons Ltd. [1981] N.S.W.L.R. 362 at 368, in which the New South Wales Court of Appeal stated as follows:
"Contempt will be established if a publication has a tendency to interfere with the due administration of justice in the particular proceedings. This tendency is to be determined objectively by reference to the nature of the publication; and it is not relevant for this purpose to determine what the actual affect of the publication upon the proceedings had been, or what it will probably be. If the publication is of a character which might have an affect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so removed or theoretical that the de minimis principle should be applied."
This definition received approval from the Law Reform Commission in its consultation paper. Having given that definition it was further stated that there is a need to show a real risk, as opposed to a merely remote possibility of prejudice.
Mr. McDonagh placed particular emphasis on two aspects of the articles published by the respondents. The first point made by him was that to publish anything regarding the merits of a case against a defendant is contempt of court. In support of this view he relied on a passage from Borrie & Lowe on the Law of Contempt, set out in the consultation paper at p. 75:
"Publications which directly or indirectly prejudge the merits of a trial and particularly those which impute the guilt or innocence of the accused are classic examples of trial by newspaper. Such publications obviously have a tendency to prejudice the fair trial of an accused, since they could clearly create bias in the minds of those who actually have to try the case. It is therefore a serious contempt to impute directly or indirectly the guilt or innocence of an accused before he has been tried."
The other leg of the complaint made by Mr. McDonagh, relates to the argument that the publication of details which emerged at the remand hearing and details of the nature of the injuries suffered by the deceased amounts to the premature publication of evidence in a criminal trial, thus amounting to contempt of court. In support of this argument he referred to the decision in the case of R. v. Evening Standard, ex parte D.P.P., T.L.R. 833.
Mr. McDonagh went on to refer to the decision of the court in the case of Keegan v. de Burca [1972] I.R. 223, where O'Dálaigh C.J. said at p. 227:
"Criminal contempt consists in behaviour calculated to prejudice the due course of justice, such as contempt in facie curiae, words written or spoken or acts calculated to prejudice the due course of justice or disobedience to a writ of habeas corpus by the person to whom it is directed – to give some examples of this class of contempt. In other words it is argued that it is not necessary that the material published should actually have resulted in an interference with the course of justice."
Finally, reference was made by Mr. McDonagh to the decision of Kelly v. O'Neill [2000] Vol. 1 I.R. 354 where Keane J. stated at p. 375 the approach towards contempt committed through breach of the sub judice rule in the following terms:
"The law adopts this approach because to do otherwise would be to put at risk the public confidence in the administration of justice which it is the very purpose of the contempt of court doctrine to preserve. If the press, television or radio or anyone else were free to publish such material with impunity and availed of that freedom in an irresponsible manner, many persons facing criminal charges might well consider that their prospects of a fair trial by an impartial jury had been seriously damaged. But that is not the only relevant consideration. As has frequently been pointed out, the right to a fair trial in due course of law guaranteed under the Constitution is not simply a right vested in those who happen to be accused of particular crimes; it is in the interest of the community as a whole that the right should be protected and vindicated by the State and its organs."
Accordingly, Mr. McDonagh urges that this court should grant the relief sought by the applicant herein.
Mr. Shane Murphy S.C. on behalf of the respondents, asked for a direction at the close of the prosecution's case on the basis that as the onus of proof rests with the applicant to prove all matters in issue by reference to the criminal burden of proof beyond reasonable doubt that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it. In this regard he referred to the leading case R. v. Galbraith [1981] 1 W.L.R. 1039. He submitted that it was essential that there must be proof before the court of a real risk of interference with a criminal trial. In this particular case he argued that as there was no evidence as to when there was to be a trial that no evidence was adduced by the prosecution to demonstrate that the publication of the article on 2nd December, 2004 created any real risk of interference with the due administration of justice in the prospective criminal trial of Patrick O'Dwyer. In support of this argument he referred to the decision of O'Hanlon J. in Desmond v. Glacken [1992] I.L.R.M. 490 at p.504, where it was stated:
"It has been stated in other decided cases that there is a need to show a real risk as opposed to a mere remote possibility of prejudice."
He also referred to the judgment of Kearns J. in Redmond v. The Director of Public Prosecutions [2002] 4 I.R. 133, in which Kearns J. noted the robust nature of the jury system where he stated at p. 144 of his judgment:
"One must begin therefore by asking if the adverse publicity in its character, tone and duration is of such a degree in this case as to deprive the trial judge at the outset of the option of inviting self-disqualification of potential jurors as a method of overcoming the risk of an unfair trial due to prejudicial publicity."
At p. 145 of his judgment Kearns J. went on to say:
"Insofar as the fade factor is concerned, it is common case that the very bringing of this application means the applicant's trial will not take place at the earliest until some time in 2003. By that time, the fade factor will undoubtedly have operated to diffuse further the effects of adverse publicity in the past. Furthermore, nothing published about this hearing or in this judgment repeats the contents of any detrimental material complained of."
While the comments of Kearns J. on the robustness of juries are apposite, the issue before the court in that case was whether the trial should be prohibited or postponed because of adverse pre-trial publicity and was not concerned with the question of whether or not a newspaper was guilty of contempt in respect of pre-trial publications.
In considering whether there was a real risk of an interference with the trial process it was submitted on behalf of the respondents that the remoteness of a trial date is a material factor. In that regard reference was made to the decision in the case of D. v. the Director of Public Prosecutions [1994] 2 I.R. 465 at p. 472, where Blayney J. referred to the duties of a jury in a criminal trial. He stated:
"What must be borne in mind also is the impact made on the jury by hearing the witnesses in the case by having the evidence at first hand presented to them. Are they going to permit their assessment of that evidence to be influenced by a vague recollection of something they had read in a newspaper some months before, particularly when to do so would be to disregard their oath and to disregard the clear directions given to them by the trial judge."
As events would have it, since the argument in this case was heard, a trial date for the hearing of the trial in this matter has been fixed.
Mr. Murphy also referred to a decision of the Supreme Court of Victoria in a case called Brych v. The Herald and Weekly Times Ltd. [1978] V.R. 2727, where Anderson J., in the Supreme Court, considered an application for contempt arising out of circumstances where the respondent published an article relating to the plaintiff and the conduct by him of a medical practice. The plaintiff in that case had issued proceedings against the defendants, claiming damages for libel which was to be determined by a judge and jury. Two weeks after the libel proceedings had been instituted the respondents published articles making reference to the plaintiff. An application was made to commit and attach the respondents for contempt of court. In his judgment Anderson J. approved the judgment of Lord Reid in Attorney General v. Times Newspapers Ltd. [1974] A.C. 273 at pp. 298 to 299 where Reid L.J. posed the following two questions:
"(a) First, was there a contempt at all ?
and
(b) Secondly, was it sufficiently serious to require or justify the court in making an order against the respondent … I think that the true view is that expressed by Lord Parker in R. v. Duffy, ex parte Nash [1960] 2 All E.R. 891 at p. 896, that there must be 'a real risk as opposed to a remote possibility'.
That is an application of the ordinary de minimis principle that there is no contempt if the possibility of influence is remote. If there is some, but only a small, likelihood that may influence the court to refrain from inflicting any punishment. If there is a serious risk some action may be necessary."
Anderson J. in that particular case went on to hold that one of the relevant considerations is the date of publication of the alleged contempt in relation to the action. Mr. Murphy placed considerable emphasis on the decision of Anderson J. in the Brych case.
Mr. Murphy also placed particular emphasis on the decision of O'Hanlon J. in the Desmond v. Glacken case referred to above. In particular he referred to the discussion in that judgment of the need to strike a balance between the competing interests, namely freedom of expression and the right of an accused to a fair trial in due course of law.
Mr. Murphy concluded his submissions by saying that there was no evidence adduced by the prosecution to suggest that an imminent criminal trial is likely to be exposed to any risk of prejudice as a result of the respondents' publication. There is no compelling case made out by the D.P.P. beyond reasonable doubt to establish that the respondents' publication represents a real risk of prejudice to the trial of Patrick O'Dwyer as opposed to a mere remote possibility of prejudice.
In reply to these submissions it was urged on me by counsel for the D.P.P. that the fact that a trial date had not been fixed at the time of hearing was not of itself a bar to proceeding with this matter. Further, he urged that a publication would amount to contempt if it has a tendency to cause prejudice. He argued that it was not necessary to establish actual prejudice. He suggested that it was not necessary to prove these matters beyond reasonable doubt.
As a result of the submissions made to me, a number of points may be made. First, what is alleged in the case before me is a criminal contempt of court. To paraphrase the words of O'Dálaigh C.J. in Keegan v. de Burca [1972] I.R. 223, criminal contempt consists in behaviour calculated to prejudice the due course of justice.
I think it is also clear in considering whether a publication is calculated to create a real risk of prejudice to the administration of justice there must be some temporal link between the date of publication and the date of the proceedings alleged to be interfered with. That temporal link must be considered realistically in the light of the facts of any particular case. Clearly, a publication made immediately after proceedings have commenced in respect of a matter not likely to come to trial for three or four years may not be of significance, whereas a publication in respect of proceedings which have a shorter timeframe may carry with it such a risk. Obviously the temporal factor is simply one issue to be considered in determining objectively whether a publication has a tendency to interfere with the due administration of justice in a particular case. Nonetheless, I am not of the view that it is a necessary proof in an application of the kind before me that the applicant must indicate to the court when a trial is likely to be heard or, indeed, a precise date upon which a case is going to be heard.
I accept that in determining whether a publication has the tendency to interfere with the due administration of justice that the tendency in question is to be determined objectively by reference to the nature of the publication (see Attorney General (New South Wales) v. John Fairfax and Sons Ltd.) Accordingly, it has generally been accepted that the offence of contempt of court is absolute in its nature and does not require the establishment of mens rea (see Kelly v. O'Neill [2000] Vol. 1, I.R. 354). On this basis it was argued by counsel on behalf of the applicant herein that it is not necessary that the material at issue should have been written, produced or published with the aim that it should have the effect of prejudicing the due administration of justice. Whilst I accept that principle, that does not mean that the onus of proof in relation to these criminal proceedings, i.e. the proceedings for contempt of court, are any different to the burden imposed upon the prosecutor in any other criminal proceedings. Assuming the Respondents to be found guilty of criminal contempt, a range of sanctions, namely, imprisonment, fines or sequestration of assets are open to the Court. How then can it be argued that in a case such as this the standard of proof is less than that required for other criminal proceedings? It seems to me that this is to confuse what has to be proved with the standard to which it has to be proved.
Acccordingly, I accept the argument made by Mr. Murphy on behalf of the respondents that the burden of proof in this case is to establish that the respondents herein are guilty of contempt of court beyond reasonable doubt.
Finally, I think it is clear from the argument before me and from the authorities referred to me that the premature publication of evidence in a criminal trial may constitute contempt. (It is interesting to note that the applicant has not availed of the procedure provided in S. 4J of the Criminal Procedure Act, 1967, as amended.)
I think that it is fair to say that the articles complained of in these proceedings go further than may be considered desirable in terms of the amount of detail and the descriptions given as to the personality of the accused and the details of the assault which led to the death of Marguerite O'Dwyer. Indeed, in regard to the latter matter, the article which is exhibited at the letter 'A' in the affidavit of John Forde could fairly be described as distasteful, if not downright offensive. However, that is not the question I have to determine.
As I indicated at the outset of this judgment, the application herein is brought on two particular bases, one the tendency of the articles to identify the accused as the perpetrator of the offence alleged and secondly that there was premature publication of material which will be evidence in the case. For obvious reasons I do not want to go into a detailed analysis of all of the matters that appeared in the newspaper articles for the purpose of determining whether or not the applicant herein has shown that the matters referred to establish a real risk as opposed to a mere possibility of prejudice. I think it is not unfair to argue that the articles taken together leave an impression from which it could be inferred that the said Patrick O'Dwyer was responsible for the death of his sister but it seems to me that the issue is not so clear cut as to give rise to the conclusion contended for on behalf of the applicant, i.e., a real risk as opposed to a remote possibility of prejudice, or to put it another way, that in this regard the articles are a contempt of court. The second leg of the complaint relates to the details of the post-mortem examination in respect of the deceased. It is again fair to say that the articles do refer to the results of a post-mortem examination on the deceased. However, the detail given in that regard is very limited and again I am not satisfied that it is such as to create a risk of prejudice in this regard.
In these circumstances it seems to me that I have to accede to the request made by Mr. Murphy. Accordingly, I refuse the application of the applicant.
Approved: Dunne J.