Australia

This was an appeal by the Director of Public Prosecutions (DPP) against a decision of the Supreme Court of New South Wales, Court of Criminal Appeal setting aside a conviction against the respondent broadcaster for contravention of s100 (5A) Broadcasting and Television Act. Section 100 (5A) prohibited a licensee from broadcasting or televising smoking, cigarette or cigarette tobacco advertisements. (Note: the Broadcasting and Television Act has been repealed).

The respondent televised the 1984 Australian Rugby League Grand Final, which at the time was played for the "Winfield Cup" ("Winfield" being a brand of cigarettes manufactured by Rothmans of Pall Mall (Australia) Limited). Prior to the game, the respondent introduced a segment called "the Winfield Spectacular". An announcer stated: "Winfield presents the 1984 big game buildup" which was followed by a dance performance, with the dancers dressed in red and white (i.e. the colors of the Winfield brand). There was a brief display of a banner with the words "Winfield Cup 1984" and an A-frame at the boundary of the ground with a Winfield advertisement.

The respondent was tried and convicted by jury of a contravention of s100 (5A) of the Act. It appealed to the Court of Criminal Appeal. The Court of Appeal upheld the appeal on the basis that the judge in the Court below should not have admitted into evidence a packet of Winfield cigarettes and a photograph of the hoarding bearing the advertisement. The Court of Appeal ordered a new trial; however, the DPP appealed the decision to the High Court.

The High Court unanimously upheld the appeal, holding that the Court of Criminal Appeal erred in holding that the packet and photograph were inadmissible, and that the trial judge had been right to admit them into evidence.

The respondent broadcaster filed a cross-appeal on the basis that the Court of Criminal Appeal should have found that the television segment was incapable as a matter of law of being an advertisement of cigarettes within the meaning of s100(5A) and (10) of the Act. The High Court unanimously dismissed the cross-appeal, holding that it was open to the jury to conclude that the televising of the performance constituted advertising and, further, that it was not an accidental or incidental accompaniment of the televising of another matter (i.e. the football match). Brennan, Dawson and Gaudron JJ observed that material may be designed to draw public attention to a product or promote its use without explicit description or exhortation and, indeed, that advertising can be subliminal.