Law Reform Commission of NSW, ‘Criminal Procedure, Procedure from Charge to Trial: Specific Problems and Proposals’, Discussion Paper 14, February 1987, p.565. And see generally Australian Law Reform Commission, ‘Contempt: Summary of Report’, Report No 35, AGPS, 1987.
2.
Law Reform Commission of NSW, p.565.
3.
Law Reform Commission of NSW, p.572–3.
4.
In each jurisdiction covered later in this paper the judiciary was concerned about this very point, see for instance, Stroble v California 343 US 181 (1951) at 201, Re Dagenais et al and Canadian Broadcasting Corp. et al (1994) 94 CCC (3d) 289 at 322, Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563, at 570, 574–5.
5.
In Glennon, the majority comprised MasonCJTooheyIBrennanJDawsonJ; the minority of DeancGaudronMcHughJJ, gave a joint judgment.
6.
Per MasonCJTooheyJ, at 602–4: ‘In our view … matters of mere conjecture or speculation’: Brennan J did not address this issue other than to say at 610 that appropriate directions could overcome any such risk.
7.
MasonCJTooheyJ, at 598 and 605, and BrennanJ, at 613: ‘clearly some risk … but it does not follow that where a punishable contempt has been committed, the trial must be aborted’
8.
KennedyDuncan, ‘Form and Substance in Private Law Adjudication’, (1976) 89Harv LR1685 at 1732; and see DaltonClaire, ‘An Essay in the Deconstruction of Contract Doctrine’, (1985) 94Yale Law Journal997, at 1006.
9.
Per BrennanJ, at 613 in Glennon, but see also MasonCJToohey at 598–9 and 605–6 where they argue the test for contempt is not as strict as the test for aborting a trial due to prejudice.
10.
Per MasonCJ, at 31 in Hinch. Mason CJ agreed with the trial judge's finding that of the 200,000 listeners, 100,000 were from the area from which the jurors would be selected.
11.
Per WilsonJ, in Barton v R (1980) 147 CLR 75, at 111, cited by MasonCJTooheyJ, at 599 in Glennon.
12.
See, eg, EllsworthP.C., ‘Some Steps between Attitudes and Verdicts’, in HastieReid (ed.), Inside the Juror: The Psychology of Juror Decision-Making, Cambridge Uni Press, 1993, pp.42–64; CasperJ DBenedictK.M., ‘The Influence of Outcome Information and Attitudes on Juror Decision Making In Search and Seizure Cases’ in HastieReid (ed.), above, pp.65–83; OgloffJ.Vidmar, ‘The Impact of Pre-Trial Publicity on Jurors’, (1994) 18Law & Human Behaviour507–25.
13.
For instance, the cases listed in ref. 4 above.
14.
Dagenais at 322 per LamerCJC, Gisborne Herald at 575 per RichardsonJ, R v Kray & Others (1969) 53 Cr App R 412, at 414 per LawntonJ.
15.
Glennon, per Brennan J at 613
16.
R v McCann (1991) 92 CAR 239, and R v Taylor & Taylor (1991) 98 CAR 361, and both were cited in [1996] Crim LR622, at 624–5.
17.
The Australian Law Reform Commission above ref. 1; NSW Law Reform Commission, ‘Criminal Procedure Report, The Jury in a Criminal Trial’, March 1986; and NSW Law Reform Commission, above, ref. 1.
18.
Criminal Procedure Act 1986 (NSW), s.32(3).
19.
US v Edmond 886 F. 2d 442 (DD Cir 1989) where the trial judge's decision to exclude all non-media spectators from the court was held too drastic. Likewise in Ip v Henderson 710 F. Supp. 915 (SDNY 1989), US v Soussoudis 807F. 2d 383 (4th Cir. 1986), Seattle Times Co v US District Court 845 F. 2d 1513 (9th Cir. 1988), and In re Petitions of Memphis Pub. Co. 887 F. 2d 646 (6th Cir. 1989).
20.
Global Communications v Canada (1984) 10 CCC (3d) 97, per ThorsonJA, at 111–112.
21.
Per Lamer CJC, at 316, with whom the majority agreed.
22.
Per RichardsonJ, [1995] 3 NZLR 563 at 569.
23.
Per RichardsonJ, [1995] 3 NZLR 563 at 571.
24.
CorkerLevi, ‘Pre-trial Publicity and its Treatment in the English Courts’, (1996) Crim LR 622, at 624. Those six cases are not specifically discussed there, nor in this article. Also see, NaylorBronwyn, ‘Fair Trial or Free Press: Legal Responses to Media Reports of Criminal Trials’, (1994) 53(3) Cambridge LJ492.
25.
Dyson v R (1941) 29 Cr App R 104.
26.
R v Kray & Others (1969) 53 Cr App R 412.
27.
McCann & Others (1991) 92 Cr App R 239.
28.
Taylor & Taylor (1994) 98 Cr App R 361.
29.
R v Gough [1993] AC 646 cited and approved in Blackwell & Others [1995] 2 Cr App R 625.
