Kelly v O'Neill

• Jurisdiction: Ireland
• Judge: Keane, J.,Hon. Mrs. Justice Denham J.
• Judgment Date: 02 December 1999
• Neutral Citation: [1999] IESC 81
• Court: Supreme Court
• Docket Number: [S.C. No. 197 of 1995]
• Date: 02 December 1999

[1999] IESC 81

THE SUPREME COURT

Hamilton C.J.

Denham J.

Barrington J.

Keane J.

Lynch J.

No. 179/95

KELLY v. O'NEILL & BRADY

BETWEEN

EAMONN KELLY

APPLICANT/RESPONDENT

AND

PAUL O'NEILL AND CONOR BRADY

RESPONDENTS/APPELLANTS

Citations:

AG V TIMES NEWSPAPERS LTD 1974 AC 273

CULLEN V TOIBIN & MAGILL PUBLICATIONS (HOLDINGS) LTD 1984 ILRM 577

CONSTITUTION ART 40.6

R V DAVIES EX-PARTE DELBERT-EVANS 1945 KB 435

LAW REFORM COMMISSION CONSULTATION PAPER ON CONTEMPT OF COURT (1991) 93–100

BORRIE & LOWE LAW OF CONTEMPT 3ED 161–162

BELLITTI V CANADIAN BROADCASTING CORP 1974 44 DLR (3d) 407

R V CUTHBERTSON 1981 AC 470

AG V TONKS 1939 NZLR 533

R V DUFFY EX-PARTE NASH 1960 2 QB 188

LORD SALMONS REPORT ON LAW OF CONTEMPT (1969) 12 PARA 29

AG V NEWS GROUP NEWSPAPERS LTD 1986 2 AER 833

SUNDAY TIMES V UNITED KINGDOM 1978 2 EHRR 245

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

DPP, STATE V WALSH 1981 IR 412

CONSTITUTION ART 40.6.1

R V SUSSEX JUSTICES 1924 1 KB 256

D V DPP 1994 2 IR 465

Z V DPP 1994 2 IR 476

AG V X 1992 1 IR 1

R V GREY 1900 2 QB 36

KENNEDY & MCCANN, IN RE 1976 IR 382

DPP, PEOPLE V CONROY 1986 IR 460

AG V BBC 1981 AC 303

LONRHO PLC, IN RE 1990 2 AC 154

DESMOND V GLACKIN 1992 ILRM 490

WONG V MIN FOR JUSTICE 1994 1 IR 223

CONSTITUTION ART 38.1

LAW REFORM COMMISSION REPORT ON CONTEMPT OF COURT (1994) 35 PARA 6:9

Synopsis

Contempt of Court

Criminal contempt of court; consultative case stated from High Court; applicant convicted in Circuit Court of two offences; after conviction, but before sentence, article containing material not admissible in evidence and negative to applicant was published in newspaper of which second named respondent was editor; first named respondent was author of article; applicant seeking attachment of respondents for contempt of court; whether it can be contempt of court to publish such an article after criminal trial has passed from seisin of the jury and where remainder of hearing will take place before judge sitting alone; whether given the constitutional right of freedom of expression of the press, the publication of such an article could ever constitute a contempt of court when published after conviction and before sentence.

Held: Article can be contempt.

Kelly v. O'Neill - Supreme Court: Hamilton C.J., Denham J., Barrington J., Keane J., Lynch J. - 02/12/1999- [2000] 1 IR 354 - [2000] 1 ILRM 507

The plaintiff had been found guilty of criminal offences and was awaiting sentencing. The respondents who were journalists with the Irish Times published an article before sentencing which contained material negative to the plaintiff. In the Circuit Court the respondents were found to be in contempt of court and were fined. The respondents appealed to the High Court. The High Court stated a case for the opinion of the Supreme Court on a number of issues. Principally High Court sought guidance as to whether an article published after sentencing could be deemed contempt of court and also to the impact of such a finding vis-à-vis freedom of expression of journalists. The Supreme Court, in answering the case stated, held that freedom of expression was not an unqualified right and that an article published in such circumstances could constitute contempt of court.

1 Judgment of The Hon. Mrs. Justice Denham J.delivered the 2nd of December, 1999.

2 This is a consultative case stated from the High Court for the opinion of the Supreme Court on certain questions arising on the appeal of the Respondents/Appellants from the judgment and order of the Circuit Court on 24th May, 1993.

Facts

3 The applicant/respondent (hereinafter referred to as the applicant) stood trial in the Circuit Court on a serious of offences. He was convicted on Counts 4 and 5 of the indictment, which offences involved possession of cocaine and possession of cocaine for supply to others. The jury returned a guilty verdict on 15th May, 1993 and sentencing was deferred by the trial judge until 27th May, 1993 to enable evidence to be given. On 17th May, 1993 the Irish Times caused to be published an article written by Paul O'Neill, the first named respondent/appellant. The article contained material not admissible in evidence before the court and negative to the applicant; the article is set out in the schedule to this judgment. At the time of the said publication Conor Brady (the second named respondent/appellant) was editor of that newspaper. On 21st May, 1993 an application was made to the Circuit Court for liberty to serve a short notice of motion seeking the attachment of the respondents. A hearing took place before the Circuit Court Judge on 24th May, 1993 at which evidence on affidavit was given on behalf of the respondents.

4 Conor Brady deposed that the respondents had not wanted or intended to be contemptuous of the court. As the matter had passed out of the hands of the jury they believed themselves free to comment on matters of public importance i.e. the jury's decision, the history of the applicant's previous court appearances and the actions which had involved him in previous court appearances. It did not occur to them that the article could or wouldinfluence the judge who was to pass sentence. He deposed that it was the policy of the Irish Times over a number of years to carry articles concerning the result of serious criminal cases, including information on persons who had pleaded guilty or been found guilty by a jury, the article the subject of these proceedings was one such article. During the trial the Irish Times had carried reports of the hearing of the case and had been careful to ensure that any comment made could not be said to have influenced or be capable of influencing the jury. He deposed that it was not their intention for the article to interfere with the determination of the judge of an appropriate sentence. He stated that if the court was of the view that the actions were a contempt he apologised unreservedly and said it was not an intentional contempt of court.

5 The consultative cases stated from the High Court states:

"7. Following argument by the parties to these proceedings the Circuit Judge made a finding that as a matter of fact and of law he was incorruptible but went on to hold that the article did constitute a contempt of the Circuit Court and imposed a find on the [Respondents] in the sum of £5,000 and awarded the costs of the Application to theApplicant".

6 On the respondent's appeal to the High Court, in the course of the legal submissions, the learned High Court judge expressed the view that having regard to the legal questions and issues which arose he would be prepared to state a case for the opinion of the Supreme Court. Accordingly, the following questions were stated:

7 a "(a) Can it be a contempt of Court to publish an article in the terms of that complained of after a criminal trial has passed from the seisin of the Jury and where the remainder of the hearing will take place before a Judge sitting alone?

8 (b) Given the constitutional right to freedom of expression of the press-could the publication of the article complained of ever constitute a contempt of Court when published after conviction and beforesentence?"

Submissions on behalf of the Applicant

9 Mr. Rex Mackey, S.C., counsel on behalf of the applicant, submitted that the newspaper article was contemptuous having regard to: (a) the proximity to the pronouncement of sentence; (b) the intemperate language of the article; (c) the publication of what were submitted to be untrue and unproven allegations against the applicant before sentence; (d) the danger in public appeasement of the process of justice in creating disrespect for the law, particularly having regard to the very heavy sentence imposed; (e) the effect of such article in practice (subsequent to conviction but prior to sentence) to inhibit potential character witnesses for the defence. Furthermore, it is submitted that the constitutional right to freedom of expression is not absolute and is subject to the right of the courts to administer justice. He also submitted that any delay imposed on the newspapers would be of short duration, in this case ten days and in general terms not more than four to six weeks. In determining the proper balance between the competing interests it is fair and reasonable that the newspaper should not publish material until the issue is finally decided before the court of trial. He referred to authorities, in particular A. G. v. Times Newspaper Limited, [1974] A. C. 273, Lord Reid at p.300.

Submissions on behalf of the Respondents

10 Mr. Nesbitt, S.C., counsel for the respondents, submitted that at the time of publication the trial had passed out of the seisin of the jury and what remained, sentencing, was to be dealt with by the judge alone. As the judge had indicated he was incorruptible in fact and in law and was and could not be affected by the article, the article could not be a contempt of court. Insofar as the article contained matter not admissible in evidence before the court the judge was confined to considering only those matters proved properly before him and not any of the material in the article. The article could not on this ground be a contempt of court as being a breach of the sub judice rule. It was submitted that having regard to the decision of the Supreme Court in Cullen v. Toibin and Magill Publications (Holdings) Ltd. [1984]ILRM 577, the application must fail in limine because the trial judge could not be affected by any publication but must, in accordance with the oath of office, confine himself only to evidence properly adduced before him. It was submitted that if the applicant's contention was accepted it would by analogy no longer be possible to publish information about a convicted person between...