LLM THESIS
Identification of a suspect before being charged; legitimate freedom of speech or a threat to a fair trial?
Craig Neilson Burgess BA School of Law Academic qualification for which this thesis is submitted: Master of Laws Year submitted: 2005 2 Keywords
Contempt of court – subjudice – naming suspects before charge – effect of prejudicial pre- trial publicity – influence on jurors – memory – freedom of speech – open justice – public interest – public safety - fair trial – evidential problems - remedies for prejudicial publicity – preferred approach.
Abstract
Identification of a person suspected of a heinous crime before being charged risks prejudicing a fair trial. Present laws place this type of publicity outside the reach of sub judice contempt. This thesis argues there should be a change in the law of sub judice contempt making it an offence for the media to publish the fact that a person is under investigation until the person has been charged.
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TABLE OF CONTENTS
TABLE OF CASES ……………………………………………………………… 6
TABLE OF STATUTES ……………………………………………………….. 12
1. INTRODUCTION………………………………………………… …… 16
2. FREEDOM OF SPEECH v A FAIR TRIAL …………………………. 21
2.1 FREEDOM OF SPEECH…………………………………21 2.1.1 Public Interest 2.1.2 Public Safety 2.1.3 Open Justice 2.1.4 Statutory exception to the principle of open justice 2.1.5 Other non-publication provisions
2.2 A FAIR TRIAL……………………………………………54
3. ANALYSIS OF PRESENT SUB JUDICE CONTEMPT LAW……… 64
3.1 WHEN ARE PROCEEDINGS SUB JUDICE? ………… 68
3.2 PRESENT SUB JUDICE CONTEMPT LAW IN OTHER JURISDICTIONS……………………………73 3.2.1 England 3.2.2 New Zealand 3.2.3 Ireland 3.2.4 Proposals for the reform of the timing provisions.
4. INJUSTICE OF SUSPECT IDENTIFIED BUT NOT CHARGED…………………………………………………. 98
4.1 THE ATTORNEYS'-GENERAL ROLE IN ISSUING CONTEMPT PROCEEDINGS………………………… 111
4.2 POLICE/MEDIA CO-OPERATION: AN UNHOLY ALLIANCE……………………………..113
5. REMEDIES FOR OVERCOMING THE EFFECTS OF PREJUDICIAL PUBLICITY………………………………………… 120
5.1 DELAYING THE START OF A TRIAL………………120
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5.2 CHANGING THE VENUE…………………………. 123
5.3 JUDICIAL INSTRUCTIONS……………………….. 125
5.4 DISCHARGING A JURY BEFORE VERDICT……………………………………………. 129
5.5 CHALLENGE FOR CAUSE……………………….. 131
5.6 PERMANENT STAY OF PROCEEDINGS………… 138
5.7 TRIAL BY JUDGE ALONE …………………………146
5.8 CONCLUSION……………………………………… 150
6. ANALYSIS OF DATA……………………………………………….. 152
6.1 INFLUENCE ON JURORS ………………………...155
6.2 EVIDENTIAL PROBLEMS REGARDING PREJUDICIAL PUBLICITY………………………... 161
6.3 MEMORY…………………………………………… 170 6.3.1 Short-term memory 6.3.2 Long-term memory 6.3.3 Retrieval of long-term memory
6.4 US PRE-TRIAL PUBLICITY RESEARCH…………173
6.5 MEDIA ETHICS……………………………………. 179
7. PREFERRED APPROACH ………………………………………… 184
BIBLIOGRAPHY……………………………………………………………. 195
5 TABLE OF CASES
Advertiser Newspapers Ltd v Bunting & Ors (2000) SASC 458
Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555
Attorney-General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318
Attorney –General (NSW) v X [2000] NSWCA 199
Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695
Attorney-General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405
Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368
Attorney-General v News Group Newspapers Plc [1989] QB 110
Attorney-General v Sport Newspapers Ltd [1992] 1 All ER 503
Attorney-General v News Group Newspapers [1987] QB 1
Attorney-General v Times Newspapers [1973] Al ER 54
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67
Brown v The Queen (1986) 160 CLR 269
Bush v The Queen (1993) 43 FCR 555
Callis v Gunn [1964] 1 QB 495
Channel Seven Adelaide Pty Ltd v Draper (2004) SASC 351
Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Commercial Bank of Australia Ltd v Preson (1981) 2 NSWLR 554
Cunningham v The Scotsman Publications Ltd [1987] SLT 698
Davis v Baillie [1946] VLR 486
Daubney v Cooper [1829] 1 B & C 237
6
Dietrich v R (1992) 177 CLR 292
DPP v Weis [2002] VSC 153
DPP v Williams & Ors [2004] VSC 209
Ex parte B (Unreported Central Criminal Court, Scott-Baker J, February 17, 1994)
Ex Parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd [1937] SR (NSW) 242
Ex parte Jones [1806] 13 Ves 237 (33 ER 283)
Gallagher v Durack (1983) 152 CLR 238
Gilbert v The Queen (2000) HCA 15
Gilbert v Volkers (2004) QSC 436
Glennon v R (Unreported Court of Criminal Apeal Victoria, McGarvie and Nathan JJ; Southwell J dissenting, 1990)
Hall v Associated Newspapers [1978] SLT 241
Harkianakis v Skalkos (1997) 42 NSWLR 22
Herald & Weekly Times Ltd v Braun [1994] 1 VR 705
Herald & Weekly Times Ltd v Magistrates’ Court of Victoria (1999) 2 VR 672
Herald & Weekly Times Ltd v Popovic (2003) VSCA 161
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
Jago v the District Court of New South Wales (1989) 168 CLR
James v Robinson (1963) 109 CLR 593
John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81
John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) NSWCA 324
Imperial Group plc v Philip Morris Ltd (1984) RPC 293
Interlego AG v Croner Trading pty Ltd (1991) 102 ALR 379
7 J v L & A Services Pty Ltd (no 2) [1995] 2 Qd R 10
Johansen & Chambers v R (1996) 87 A Crim R 126
Krulevitch v US (1949) 336 US 440
L v ABC & Ors (2004) NTSC 5
L v Paul Tudor-Stack (2005) NTSC 19
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lange v Atkinson [1998] 3 NZLR 424 at 477
Long v R (2002) QSC 054 (Unreported Dutney J, 18 February 2002)
Long v The Queen (2004) HCA Transcript 232 23 June 2004
London Artists Ltd v Littler [1969] 2 QB 375
M v DPP (Unreported June 3 1996, Dunford J)
Maxwell v The Director of Public Prosecutions [1935] 309 AC 317
McKinney v The Queen (1991) 171 CLR 468
Murphy, Murphy, Murphy and Murphy v The Queen (1987) 37 A Crim R 118
Murphy v R (1989) 167 CLR 94
Murphy v The Queen and, Murdoch v The Queen and Murphy v The Queen (1989) 167 CLR 94
Nash v United States (1932) 54 F.2d 1006
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Nicholas v The Queen (1998) 193 CLR 173
Nine Network Australia Pty Ltd v McGregor & Ors (2004) NTSC 27
Noriega 917 F 2d 1543 (11th Cir. 1990)
O'Neill v Australian Broadcasting Corporation, Roar Film Pty Ltd and Davie (2005) TASSC 26
O’Shane v John Fairfax Publications Pty Ltd (2004) NSWSC 140
Packer v Peacock (1912) 13 CLR 577
8 Payton & Co Ltd v Snelling, Lampard Shoshana Pty Ltd v 10th Cantanae Pty Ltd (1987) 79 ALR 279
Pearse v Pearse [1846] 1 De G & Sm 12; 63 ER 950
Pfenning v The Queen (1995) 182 CLR 461
Polyukhovich v The Commonwealth (1991) 172 CLR 501
R v Apostilides (1984) 53 ALR 445
R v Beaverbrook Newspapers Ltd [1962] NI 15
R v Chandler (No. 2) [1964] 2 QB 322
R v Channell (2000) NSWCCA 289
R v Clement [1821] 4 B & Ald 218; 106 ER 918
R v Cogley [2000] VSCA 231
R v Connell & ors (unreported Supreme Court of Western Australia, Seaman J, 26 February 1993)
R v Cullen [1951] VR 335
R v Daily Mirror; Ex parte Smith [1927] 1 KB 851
R v Damic (1982) 2 NSWLR 750
R v D'Arcy (Unreported Supreme Court of Queensland, Douglas J, 17 October 2000)
R v D'Arcy (2001) QCA 325
R v D'Arcy (2003) QCA 124
R v Davidson (2000) 300 QCA 14
R v David Syme and Co Ltd [1982] VR 173
R v Davies [1906] 1 KB 32
R v George (1987) 29 A Crim R 380
R v Giddings [1916] VLR 359
R v Gilbert (2000) 74 ALJR 13
R v Glennon (1992) 173 CLR 592
9 R v Grenning [1957] NZLR 906
R v K [2003] NSWCCA 406
R v Lee (1950) ALR 517
R v Lewis (1994) 1 Qd R 613
R v Long (2002) QSC 054
R v Long; ex parte A-G (Qld) [2003] QCA 77
R v Manson [1974] Qd R 191
R v Marshall (1986) 22 A Crim R 432
R v Maxwell (unreported Central Criminal Court, May 25, 1995)
R v McLachlan [2000] VSC 215
R v Parke [1903] 2 KB 432
R v Pomeroy [2002] VSC 178
R v Rawcliffe (1977) NSWLR 219
R v Savundranayagan and Walker [1968] 3 All ER 339
R v Sharpe and Stringer [1938] 1 All ER 48
R v Sherrin (1978) 20 SASR 164
R v Stuart and Finch [1974] Qd R 297
R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256
R v WA Newspapers Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518
R v Yanner [1998] 2 Qd R
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650
Re JRL; Ex Parte CJL (1986) 161 CLR 342
Re the Evening News (1880) 1 NSWLR 211
10 Reynolds v Times Newspapers [1998] 3 All ER 961
Ritz Hotel v Charles of the Ritz Ltd (1988) 15 NSWLR 158
Russell v Russell (1976) 134 CLR 495
Scott v Scott [1913] AC 417
SGIC v GIO (1991) 101 ALR 259
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Sterling v Associated Newspapers [1960] SLT 5
Stollery v Greyhound Racing Control Board (1973) 128 CLR 509
Television New Zealand v Solicitor-General [1989] 1 NZLR 1
The King v MacFarlane; ex parte O’Flanaghan and O’Kelly [1923] 32 CLR 518
The Prothonotary v Collins (1985) 2 NSWLR 549
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
The People v Lehman (No. 2) [1947] Ir. R 137
The Queen v Glennon (1992) 173 CLR 592
The Queen v Hough (2002) WASCA 42
Tuckiar v R (1934) 52 CLR 335
U.S. v McVeigh, 918 F. Supp.1467 (1996)
U.S. v McVeigh (1997) 955 F. Supp. 1281
United States v Delli Paoli (1956) F.2d 319
Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 56.
Walton v Gardiner (1993) 177 CLR 378
Webb and Hay v The Queen (1994) 181 CLR 41
Westpac Banking Corp v John Fairfax Group Pty Ltd (1991) 19 IPR 513
Woolmington V DPP [1935] AC 462
Zoneff v The Queen (2000) HCA 28
11 TABLE OF STATUTES
Commonwealth Evidence Act 1995 (Cth) s 57 Federal Court of Australia Act 1986 (Cth) s 17 (4)
Australian Capital Territory Evidence Act 1971 s 82 s 83 s 84 Juries Act 1967 s 36A Supreme Court Act 1933 Pt VII
New South Wales Crimes Act 1900 s 578 (4) Criminal Procedure Act 1986 s 32 s 33 Juries Act 1977 s 46 s 68C
Northern Territory Evidence Act 1939 s 57 s 59 Juries Act s 42
Queensland Criminal Code 1899 s 557 s 577 (1) s 557 (9) Criminal Law Amendment Act 2002 Criminal Law (Sexual Offences) Act 1978 s 6 s 7 s 10 (3) b Criminal Offence Victims Act 1995 Jury Act 1995 s 47 s 69A
12 Justices Act 1886 s 71 Juvenile Justice Act 1992 Police Service Administration Act 1990 Supreme Court Act 1995 s 223
South Australia Evidence Act 1929 s 68 s 69A (5) s 69B (9) s 71B Juries Act 1927 s 7 s 68
Tasmania Jury Act 1899 s 52 Justices Act 1959 s 37
Victoria County Court Act 1958 s 80 Juries Act 2000 s 34 Magistrates Court 1989 s 126 Supreme Court Act 1986 s 18 s 19 (b)
Western Australia Criminal Code Ch LXIVA Evidence Act 1906 s 11 s 11A
Canada Criminal Code s 11 (f) s 469 s 473
United Kingdom Contempt of Court Act 1981 Schedule 1 para. 1 Schedule 1 para. 4
13 s 2 (3)
United States of America Constitution First Amendment Sixth Amendment Fourteenth Amendment
International International Covenant on Civil and Political rights Art 14 Art 17 Art 19 Europe Convention Art 6
14 The work contained in this thesis has not been previously submitted for a degree or diploma at any other higher education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made.
Signature:______
Date:______
15 1. INTRODUCTION1
This thesis addresses the long history of conflict between the media and the judiciary over pre-trial publicity. In particular it will concentrate on the ‘grey’ area concerning the identification in the media of a suspect before the judicial process begins. It will attempt to demonstrate that identification of a suspect before being charged risks prejudicing a fair trial and there should be a change in the law of sub judice contempt making it an offence for a media outlet to publish the fact that a person is under investigation until that person is charged and has appeared in court. A phrase from
Willis J’s judgment in R v Parke sums up the position succinctly:
It is possible very effectually to poison the fountain of justice before it begins to
flow. It is not possible to do so when the stream has ceased.2
The genesis for this thesis arises from a number of recent criminal cases involving high profile people, and others, accused of heinous crimes. These included former
Queensland Member of Parliament, Bill D’Arcy, who was eventually found guilty of multiple counts of sexual abuse, popular national women’s swimming coach Scott
Volkers, accused of sexually abusing former swimming pupils and the man suspected of the horrific Childers backpackers hostel fire in which 15 people perished. In all cases the accused were named and vilified by the media before they had been charged with any crime. This excited some debate between civil libertarians
1 Although this thesis draws from a wide range of jurisdictions the reader will note a Queensland bias. This is because the basis of the thesis, that the media be restrained from publishing prejudicial material before the judicial process begins, was most recently suggested by a Queensland lawyer. The suggestion came after a number of sensational cases in that state involving prejudicial pre-trial publicity. 2 R v Parke [1903] 2 KB 432.
16 and the media concerning the ethics involved in publicly naming suspects.3 The debate could only be confined to ethics because the law of contempt as it stands does not prohibit the naming of suspects, although the media do risk defamation proceedings should the suspect be acquitted or if charges are not preferred for one reason or other. The absurdity in allowing the media to disseminate highly prejudicial information, such as revelations concerning prior criminal records or confessions, at the pre-charge stage but not at the time charges are laid or when any subsequent trial is held, would seem to demonstrate an anomaly in the sub judice contempt law that is in urgent need of reform.
On the one hand, the media emphasises the right to freedom of speech, a fundamental common law right. The High Court recognised two decades ago in a contempt case that freedom of expression is of 'cardinal importance' and that 'speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed'.4 It is as a result of the exercise of this right that the public's 'right to know' is satisfied.
On the other hand, all accused persons have a right to a fair trial. That right is embedded in the common law. One element of a fair trial is that jurors exercise an impartial mind and only consider the admissible evidence when deliberating on guilt or innocence. In other words, jurors should not be influenced by extrinsic material when exercising their function in the jury room. That proposition remains topical because of the plethora of extrinsic material to which a contemporary juror may be
3 Terry O'Gorman,‘The issue of naming rights’, The Courier-Mail, 5 September 1998, 27. 4 Gallagher v Durack (1983) 152 CLR 238, 243 (Gibbs CJ, Wilson, Mason, Brennan JJ).
17 exposed, including in more recent years from the Internet. Also US social psychology experts are of the opinion that attitudes created by media publicity will be remembered long after the details upon which they are based have begun to fade and will affect the manner in which jurors will process the material put before them at trial.5
Superimposed on this tension between two cardinal stipulations, is the judiciary's obligation to deliver justice according to law, and be seen to do that. One aspect of this obligation is meeting society's expectation that a person accused of a serious criminal offence will be brought to trial.6 This entails that, save for truly exceptional cases, Judges usually exercise their discretion to refuse a permanent stay of proceedings, even where there has been substantial adverse publicity to an accused.
This necessarily casts a heavy obligation onto the media to avoid publicity which will affect the fairness of the trial. For a conviction following an unfair trial is a conviction obtained at too high a price. In fairness, most judges in Australia maintain their experience of trials has shown that directions to juries to ignore prejudicial material are an effective remedy. Faith is also placed in the ‘fade’ factor in which it is said jurors will be more likely to forget prejudicial material with the passage of time.
The existing law does provide some other remedies for those named as suspects before charges are laid but these are often unevenly applied. For example, defamation is available but while a successful action may provide some monetary compensation it cannot be guaranteed to restore reputation. Suppression orders are
5 Hugh Selby, 'The Pre Trial Use of Survey Evidence by Trial Judges' paper presented at the 28th Australian Legal Convention, Hobart, September 1993 at 14.
18 available but as noted in Chapter 2 some jurisdictions are more inclined to use them others. Privacy is another issue with some recent cases in Australia and the United
Kingdom opening the door to a tort of invasion of privacy. All these issues are worthy of investigation but are beyond the scope of this thesis which is confined to simply arguing the case for legislative changes to the law of sub judice contempt.
Therefore, through an extensive review of relevant case law and studies this thesis has developed the argument that freedom of speech pre-charge should be postponed for as long as it takes for an accused person to receive a fair trial. That is, there is no denial of free speech just a postponement of prejudicial publicity during the crucial stage before an accused is charged and appears in court. The prohibition should extend to the naming of any alleged suspect because by linking the person with the prejudicial material, such as alleged confessions or prior convictions, the damage to the accused is magnified. This prohibition is not only in the best interests of the defendant who has a right to a fair trial but also the prosecution and the public who have a right to secure a verdict from judges or jurors that is free from prejudice.
This thesis will develop this argument by defining the difficulties in balancing the opposing principles of Freedom of Speech versus a Fair Trial. It will also analyse present sub judice contempt law in Australia and other common law countries and outline why the contempt law should be changed in the interests of a fair trial. The injustice in suspects being identified but not charged will be detailed as well as the strengths and weaknesses of the various remedies that are currently available to overcome the effects of prejudicial publicity. The psychological effect prejudicial pre
6 R v Glennon (1992) 173 CLR 592; Murphy v R (1989) 167 CLR 94; R v Lewis (1994) 1 Qd R 613.
19 trial publicity has on jurors is analysed as well as the results of research in this area.
The thesis draws on all areas to justify a preferred approach whereby the laws of sub judice should extend to the pre-charge time frame to prevent persons considered to be under suspicion by law enforcement authorities from being publicly named in the media in the interests of a fair trial.
20 2. FREEDOM OF SPEECH v A FAIR TRIAL
2.1 FREEDOM OF SPEECH
The media often define freedom of speech as ‘the right to know’. This thesis acknowledges that right. But it also recognizes there are occasions when the public’s
‘right to know’ has to be curtailed in the wider public interest such as the proper administration of justice. For example, as this thesis argues, prohibiting the naming of a suspect and any other prejudicial material before charges are laid. Most people recognise the desirability of freedom of speech. Some mistakenly believe it to be a constitutional right in Australia. But how does one define free speech? Perhaps the shortest definition would be the expression of thought through the spoken word. The
Australian Law Reform Commission has said there is no doubt that freedom of expression is one of the hallmarks of a democratic society, and has been recognised as such for centuries.7 Butler has succinctly described free speech as 'speech that is not subjected to regulation by the State'.8 According to the celebrated English jurist
Lord Denning it means that everyone should be free to think his own thoughts and to have his own opinions and to give voice to them so long as he does not speak ill of his neighbour or incite anyone to violence.9
A common example given for the reasons for restrictions on free speech is the scenario where a person shouts, without justification, 'fire' in a crowded theatre thereby causing panic and potential injury. In those circumstances most people
7 Australian Law Reform Commission, Contempt (Report 35, 1987) at para 242. See also Hinch v Attorney General (1987) 164 CLR at 57 (Deane J): "Freedom of public discussion of matters of legitimate public concern is, in itself, an ideal of our society". 8 Butler D and Rodrick S, Australian Media Law, 2nd ed, Lawbook Co , Sydney 2004 at 3.
21 would agree that the law should prohibit an action such as that. Australia, under its
Constitution, does recognise the right to trial by jury.10 But it does not have a written
Bill of Rights guaranteeing freedom of speech. Until the 1992 decisions of the High
Court of Australia in Nationwide News Pty Ltd v Wills11 and Australian Capital
Television Pty Ltd v Commonwealth12 no constitutional protection of freedom of speech had been recognised. There was however, what was known as a 'residual liberty' that is the freedom existed to the extent that legislation and the common law did not restrict it. The 1994 Theophanous13 case created a constitutional defence for publications concerning political and government matter. The defence could apply where defendants were unaware that publications were false, had not published recklessly without caring about truth or falsity, and publication was reasonable in the circumstances. Theophanous also expanded common law qualified privilege to cover media publications about political or government matters.14 For such matters, defendants need not have met the constitutional defence’s reasonableness requirement. But the defence did not survive. The 1997 Lange15 decision confirmed the constitutional protection for political communication, but it has since been narrowed by a limitation of ‘government or political matters’16 to those of the electoral and parliamentary sense, such as discussion about political candidates. It does not extend generally to matters of public interest.17 Lange therefore, impacts on my thesis that a statute should be invoked preventing the media from naming people suspected of a crime. This is because if a politician is named in the media of being
9 Sir Alfred Denning, Freedom under The Law, Hamlyn, London, 1949 at 35. 10 Australian Constitution s80. 11 (1992) 177 CLR 1. 12 (1992) 177 CLR 106. 13 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104. 14 Ibid. 15 Lange v ABC (1997) 189 CLR 520. 16 See Andrew T Kenyon, Lange and Reynolds Qualified privilege: Australian and English Defamation Law and Practice,(2004) 28 Melbourne University Law Review, 406, 416.
22 suspected of committing a crime then an argument could ensue over whether the matter touches on discussion about political candidates or is merely of public interest. Also as Chesterman18 points out Australian statute law contains further examples of free speech protection arising within the law without being clearly labelled as such. For example, under the Commonwealth law dealing with racial vilification, racist speech occurring 'otherwise than in private' is unlawful, but no liability arises if the relevant speech is uttered 'reasonably and in good faith' in the course of 'any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest'.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) adopted by the United Nations in 1966 and ratified by Australia in 1991 declares:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and
are necessary:
(a) For respect of the rights or reputation of others;
17 See eg, Amalgamated television Services Ltd v Marsden (2002) NSWCA 419 (unreported). 18 Chesterman M,'Freedom of Speech in Australian Law: A delicate plant ‘, Ashgate, Dartmouth, 2000 at 9.
23 (b) For the protection of national security or of public order, or of public
health or morals.
However, Article 19 is qualified by other rights such as the right to reputation Article
(17) and Article (14) the right to a fair hearing before the courts which conflicts with the right to freedom of speech. Therefore by exercising one's right to freedom of speech one can conceivably threaten another person's right to be presumed innocent until proved guilty according to law which goes to the heart of my thesis. However, as Chesterman points out the ICCPR created no enforceable right in Australian domestic law. At most it provided encouragement to judges to develop the common law in conformity with Article 19.19 This was a point notably taken by Kirby P to support his decision in Civil Aviation Authority v Australian Broadcasting
Corporation.20
Eric Barendt has described free speech, when it publicises or examines the workings of the legal process, as one of those complicated areas of law where the values of free speech compete with other rights and interests.21 This theme is underscored by
Walker who writes that 'on the one hand there is public interest in a fair and impartial judicial proceedings and the maintenance of the dignity and authority of courts and, on the other, the public interest in the freedom of the media to report and comment on matters of interest to the public and to subject the administration of justice to critical analysis'.22 This was a situation recognised by the celebrated Bread
Manufacturers' case where Jordan CJ said that where there is no intention to
19 Chesterman M, Freedom of Speech in Australian Law: a delicate plant, Ashgate, Dartmouth, 2000 at 3. 20 (1995) 126 FLR 26 at 42-45. 21 Barendt, E., Freedom of Speech Clarendon Press, New York, 1985 at 214.
24 prejudice a fair trial, the rule that publication of material tending to prejudice a party in court constitutes contempt is not inviolate:
The discussion of public affairs and the denunciation of public abuses, actual or
supposed, cannot be required to be suspended merely because the discussion or
denunciation may, as an incidental but not intended by-product, cause some
likelihood of prejudice to a person who happens at the time to be a litigant. 23
In many respects the Bread Manufacturers' case is the foundation of the law of contempt as it relates to publications which have an impact on cases coming before the courts. The judgment has had a profound effect on the law of contempt, not only in Australia but elsewhere, especially in the United Kingdom. The issue was whether the respondents, in publishing articles concerning the bread trade which were incidentally critical of the applicant's activities in that trade, had committed a contempt in relation to civil proceedings for libel and conspiracy in which the applicant was a defendant. Some articles had been published after these proceedings had been commenced. His Honour sought to balance the competing public interests: one, the need to protect the integrity of the administration of justice, and the other, the protection of freedom of expression, especially when that freedom of expression is exercised in relation to a topic which is, or should be, of concern to the public or a section of the public. Until the High Court decision in Hinch v Attorney-
General(Vic)24 there were two views as to how the principle should be applied, a
“normative view” and a “balancing view”.
22 Walker, S Media Law:Commentary and Materials Lawbook Co, Sydney 2000 at 526.
25 Although the Bread Manufacturers' case concerns an alleged contempt in civil proceedings, Hinch25 found the judgment applies to publications prejudicial to criminal proceedings as well. The Hinch case underscores my thesis as it relates to the damage pre trial publicity in a high profile case can do the concept of a fair trial, especially when a suspect is named and vilified. Hinch involved a criminal trial and the contempt conviction was affirmed. In that case, Hinch, an infamous Melbourne radio talkback host, commented adversely about a Catholic priest, a Father Glennon, who had been charged with serious sexual offences involving young people and had been bailed to appear before Melbourne Magistrate's Court. In a series of broadcasts
Hinch highlighted the inappropriateness of Father Glennon to continue to occupy the position of governing director of a Foundation that organised children's camps. To emphasise this point Hinch referred to Father Glennon's prior conviction and sentences of two years imprisonment for indecent assault on a young girl and to a charge on two counts of rape involving a 12-year-old boy on which Glennon had been acquitted. Perhaps if Hinch had confined his remarks to the inappropriateness of
Father Glennon continuing to hold the position that he did, Hinch would have avoided a contempt conviction but the High Court made it plain he had 'crossed the line' by mentioning the prior convictions of the accused. This statement by Deane J summed up the Court's thinking:
In a case where the publication is in the mass media and is directed solely to the
merits of the very issue to be determined in the pending proceedings (e.g. the guilt or
innocence of an accused), there would be no countervailing public interest
23 Ex Parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd [1937] 37 SR (NSW) 242 at 249 per Jordan CJ. 24 (1987) 164 CLR 15. 25 (1987) 164 CLR 15.
26 consideration which might effectively outweigh the detriment of a clear tendency to
prejudice the due administration of justice. 26
This passage tends to show the High Court judges were vitally concerned to demonstrate the limits of the Bread Manufacturers' principle .They established that the principle cannot be invoked to excuse a publication that canvasses matters directly relating to an accused's guilt or innocence. A more common occurrence of possible prejudice to an accused is the reporting of committal proceedings or bail applications which may prejudice the minds of potential jurors at any subsequent trial. In this case it is a situation where the law says, on balance, the wider interests of the administration of justice are better served by allowing publicity. The judges in
Hinch confirmed that a balancing test must be applied by weighing the public interest in the administration of justice and the public interest in freedom of speech. The extent of the balancing exercise was explained by Wilson J that:
It is important to emphasise that in undertaking a balancing exercise the court does
not start with the scale evenly balanced. The law has already tilted the scales. In the
interest of the due administration of justice it will curb freedom of speech, but only
to the extent that is necessary to prevent a real and substantial prejudice to the
administration of justice. 27
Be that as it may, the High Court in Hinch did not give much assistance in determining when a publication referring to criminal proceedings is likely to be found in the public interest.
26 Ibid at 52.
27 In R v Sun Newspapers Pty Ltd28 a publication about a criminal trial was found to be potentially prejudicial to another criminal trial. The publication did not amount to contempt however, on the basis of the public interest principle, since it did not refer to the second trial, and its prejudicial effect was therefore an incidental by-product of a discussion of a matter of public importance.
But in another case a publication that reported allegations of race fixing in the horse racing industry included material obtained from a lawful telephone tap. The New
South Wales Court of Appeal29 took the view that this was a matter of public interest but because Commonwealth legislation prevented the disclosure of material gained from telephone interceptions, the legislature had already given priority to the public in keeping such communications confidential, and it was not for the courts to permit a different public interest to prevail. This point was determined more recently by the
New South Wales Supreme Court where a newspaper that canvassed issues concerning the Sydney illegal drug trade was held not to have been in contempt of court even though an accused who was awaiting trial was named in the articles.30
Barr J said although the article discussed the accused’s current activities, including an assertion he was a major heroin distributor, and details of his personal life, there was no discussion of the facts or circumstances of the charges pending against him.
His guilt or innocence of these charges was not mentioned.31 Therefore, according to
Barr J although a publication may have a tendency to prejudice criminal proceedings it did not mean the defence of public interest would be lost. The judgment was
27 (1987) 164 CLR at 41-2. 28 (1992) 58 A Crim R 28 281. 29 John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81. 30 Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318. 31 Ibid at para 128.
28 upheld on appeal.32 All three judges of the Court of Appeal in Attorney-General
(NSW) v X (2000) agreed that the newspaper articles gave rise to an implication of guilt and therefore had a tendency to interfere with the administration of justice.33
However, Spigelman CJ and Priestley J decided that the Bread Manufacturers' principle was applicable, while Mason J dissented.
Nevertheless both the majority and minority judgments confirmed that the Bread
Manufacturers principle is concerned with the process of reconciling two conflicting public interests. That is, the public interest in the administration of justice and the interest of the public in being informed about vital matters.34 The majority in
Attorney General (NSW) v X held that the authorities do not support the promulgation of a rule that wholly precludes the conduct of a balancing exercise where the offending publication implies guilt, or suggests guilt, or canvasses matters directly related to the issue of guilt. According to Spigelman CJ there is no pre-determined balance in favour of the administration of justice for cases involving publications that fall under one or more of those categories.35
In reaching that conclusion his Honour relied heavily on the High Court formulation of an implied freedom of political communication as another ground to reject a pre- determined balance rule.36 Having decided that a balancing test is to be exercised, the
Chief Justice held that the finding of Justice Barr was reasonably open as a matter of
32 Attorney General(NSW) v X [2000] NSWCA 199. 33 Attorney General (NSW) v X [2000] at para. 70 (Spigelman CJ), at para 155, 221 (Mason P.). 34 Attorney General (NSW) v X [2000] 199 at para. 9 (Spigelman CJ), at para 175 (Mason P.). 35 Attorney General (NSW) v X [2000] at para. 111 (Spigelman CJ). 36 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth(No 2) (1992) 175 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
29 law. In dissent Justice Mason emphasized the importance of the right to a fair trial.37
It was his view that the protection of the right to a fair trial is the touchstone of the free and democratic society that the Bread Manufacturers' principle is designed to advance. He also held that Hinch and subsequent cases that considered the public interest principle establish that the defence cannot be used to excuse a publication that has the tendency to interfere with the administration of justice, where the interference consists of an implication of guilt or the canvassing of matters directly related to the central issue of guilt.38
It would seem then that the majority judgment in Attorney General (NSW) v X differs from some of the views expressed in Hinch, that in the balancing of the conflicting interests, the courts should tilt the scales in favour of protecting the due administration of justice and where the material is directed at the guilt or innocence of an accused person, it would be difficult to outweigh the public interest in a fair trial. This is evident in the judgment of Spigelman CJ who wrote that since Hinch and subsequent cases that applied the Bread Manufacturers' principle, the High
Court has recognized immunity in the Commonwealth Constitution with respect to the freedom of communication. Consequently the law of contempt must adapt to this constitutional immunity.39 Therefore it would seem to be that the Chief Justice’s view is that courts must now attribute greater weight to the freedom of public discussion when conducting a balancing test. But in the final analysis Attorney
General (NSW) v X has not provided guidance on how the Bread Manufacturers’ principle might apply to publications that deal specifically with the facts of a pending
37 Attorney General (NSW) v X [2000] at para. 178-185 (Mason P). 38 Attorney General (NSW) v X [2000] at para. 195 (Mason P.). 39 Attorney General (NSW) v X [2000] at para. 112 (Spigelman CJ).
30 trial. This was because in this case there was no discussion of the facts and circumstances of the charges pending against the accused.
The process of a fair trial has often been described as the balancing of conflicting interests.40 That is the right of a fair trial must be balanced against the interests of the community in securing a conviction. This involves a value judgment which does not always provide for consistency in judicial views. The difficulty is that the conflicting values are incommensurable and cannot be assessed on the same scale. An example can be found in the tests of when the probative value of evidence can be said to outweigh its prejudicial effect. McHugh J said of this test, in the context of the admission of propensity evidence:
Admitting the evidence will serve the interests of justice only if the judge concludes
that the probative force of the evidence compared to the degree of risk of an unfair
trial is such that fair-minded people would think that the public interest in adducing
all relevant evidence of guilt must have priority over the risk of an unfair trial.41
However, there has been some questioning of the appropriateness of a balancing approach in the contest of criminal justice. For example Professor Andrew
Ashworth’s criticism that 'balance' leads to 'sloppy reasoning'.42 Professor Ashworth is also critical of the jurisprudence of the European Court of Justice and the House of
40 The Queen v Glennon (1992) 173 CLR 592; Jago v The District Court of New South Wales (1989) 168 CLR 23; Hinch v Attorney-General (Vic) (1987) 164 CLR 15. 41 Pfennig v The Queen (1995) 182 CLR 461 at 529. 42 Ashworth A., ‘Crime, Community and Creeping Consequentialism’ (1996) Crim LR 220 at 229.
31 Lords with respect to Article 6 of the European Convention on the basis that it tends to weaken the strength of the protection of the right to a fair trial.43
To accept these rights are not absolute is not to concede that they may be ‘balanced
away’ by being compared with a general public interest and put in second place. 44
The problem when rights are granted in absolute terms, the legal process of determining how and in what circumstances they are to apply is carried out in a vacuum. When the 'whole' of a right is granted by a Bill of Rights, the text gives no guidance about the priorities that are to be reconciled or that govern, when one right conflicts with another. For example, the battle between the First Amendment45 and the Sixth Amendment46 of the US Bill of Rights has been waged in the courts and seemingly won by the First Amendment. According to at least one legal commentator that victory has enabled the media to exert a corrupting influence over trials and has had a pervasive and detrimental effect on the rights of accused persons.47
One need not look far to see several examples of the veracity of this assertion in the trials of people like O.J. Simpson, Michael Jackson, William Kennedy Smith and the
Menendez brothers which were all attended with massive and manifestly prejudicial
43 Ashworth A., ‘Criminal Proceedings after the Human Rights Act: The First Year’ (2001) Crim LR 855 at 864-867. 44 Ibid 866. 45 The First Amendment relevantly provides: "Congress shall make no law abridging the freedom of speech or of the press". 46 The right to a fair trial arises under the Sixth and Fourteenth Amendments. The Sixth Amendment relevantly provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed". The Sixth Amendment is applicable to the States by virtue of the Fourteenth Amendment. 47 O'Callaghan David J., 'The United States Experience of Unfettered Speech and Unfair Trials: A Case Against an Australian Bill of Rights', (1998) 72 Australian Law Journal at 958.
32 pre-trial publicity. Such cases lead to the conclusion that from a justice point of view, prevention is better than a cure. In summary, what all commentators acknowledge is that there is a broad range of legitimate opinion about which interest should prevail in the various factual circumstances that arise for decision. However, the weight of judicial authority is that measures that are clearly necessary for due process of law should take precedence over freedom of speech. This is particularly true in relation to criminal trials where an individual's liberty is at stake and where the public have an interest in securing the conviction of persons guilty of serious crime. The Law
Commission of New Zealand in supporting this position made the following comment:
When a conflict arises between a fair trial and freedom of the speech, the former has
prevailed because the compromise of a fair trial for a particular accused may cause
them permanent harm (for example, because a conviction has been entered wrongly),
whereas the inhibition of media freedom ends with the conclusion of legal
proceedings. 48
This comment reinforces the argument of this thesis that publishing a suspect’s name before a charge is brought threatens a fair trial and therefore the freedom of speech principle should yield to the proper administration of justice.
2.1.1 Public Interest
At common law, a publication may have a tendency to cause prejudice to proceedings, but may be found not to amount to contempt, on the basis that it:
48 New Zealand Law Commission, Juries in Criminal Trials: Part Two (Preliminary Paper 37, 1999) ("NZLC PP 37") vol 1 at para 289.
33 • relates to a matter of public interest, or promotes the public interest in some
other way; or
• Is a fair and accurate report of proceedings held in open court, or, possibly a
fair and accurate report of parliamentary proceedings.49
This thesis shall only examine the first ground of exoneration, that is, the 'public interest principle' as the fair and accurate report of proceedings held in open court does not relate to my thesis. In relation to the public interest principle it is pertinent to address the question: what is meant by the term 'public interest'? For many commentators the term is commonly used but is generally undefined. Lord Denning
MR in London Artists Ltd v Littler50 said that there is 'no definition in the books as to what is a matter of public interest'. Nevertheless he went on to describe it as
'whenever, a matter is such to affect the people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make a fair comment'.51
But as Mo52 has pointed out that while there is public interest in the discussion of a matter of public concern, there is also a public interest in confidentiality53 and there is also public interest in restricting the media for the purposes of protecting the administration of justice. There is also some ambiguity over the tests or rules to be
49 See Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 714; Hinch v Attorney General (1987) (Vic) 164 CLR 15 at 26 and 83. 50 [1969] 2 QB 375. 51 ibid 391. 52 Mo, John S., 'Freedom of Speech v Administration of Justice' (1992) 9 Australian Bar Review 216. 53 Westpac Banking Corp v John Fairfax Group Pty Ltd (1991) 19 IPR 513.
34 employed when deciding on balancing these interests in contempt of court cases.54
But in a sense the law on contempt has always imposed a restriction on freedom of speech. As McHugh JA stated in The Prothonotary v Collins55 that when 'the expression of an opinion or the communication of information is likely to interfere with the fair trial of a criminal charge, the common law has very much preferred the right to a fair trial upon legally admissible evidence'. Journalists often believe that they have a duty to tell their readers about a matter of public interest, and that their readers have an interest in receiving this information.
In England that duty had never been recognized by the courts until the Reynolds case.56 The then Lord Chief Justice, Lord Bingham, said in the Court of Appeal that as it was the task of the news media to inform the public and engage in public discussion of matters of public interest, it was to be recognized as its duty. However, public interest means more than a prurient desire to know the identity of an accused.
The desire to gossip about the motive of an accused does not justify the undermining of the presumption of innocence. Premature publication of an accused's identity is inconsistent with the presumption of innocence and should only occur if justified by some right more deserving of protection. For example, publications dealing with paedophilia in the context of a community debate may be found to have a tendency to interfere with particular criminal proceedings against a person accused of child molestation.
54 For example, in Attorney-General (NSW) v X [2000] NSWCA 199 the court was split 2-1 whether the balancing of conflicting interests was a question of law while Priestley JA in Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 681-3 identified two 'normative' and ' balancing ' approaches to the reconciliation of competing public interests. 55 (1985) 2 NSWLR 549 at 562. 56 Reynolds v Times Newspapers [1998] 3 All ER 961.
35 However, the court may decide that the publication does not amount to contempt on the grounds that it relates to a matter of public interest which outweighs the detriment it may cause to the criminal proceedings in question. This was the situation that arose in NSW in 1997 when the then Police Minister Paul Whelan gave a news conference on the subject of paedophilia. As a result of the comments made by Mr
Whelan two sexual offences trials were aborted. The Attorney General did not prosecute Mr Whelan for contempt, presumably taking the view that Mr Whelan's comments were made as part of an ongoing debate of public interest and that they were not directed at particular legal proceedings.57 This ground of exoneration is commonly referred to as the 'public interest principle' or the Bread Manufacturers' principle referring to the first Australian case where it was authoritatively formulated. This principle, as previously discussed, recognises that there is sometimes a greater interest that justifies a publication despite the fact that publication would otherwise attract sub judice liability because of its tendency to prejudice proceedings.58
Since then the High Court has considered the public interest principle only once in
Hinch v Attorney General (Vic).59 It clarified that the public interest principle may apply to publications relating to criminal proceedings. However, it took a different approach to that taken by the Bread Manufacturers' case and broadened the scope of the principle. It recognised that the principle could apply to proceedings that dealt specifically with the facts of the particular proceedings in question. It was not confined to publications relating to a general discussion, and it was not essential to the application of the principle that the potential prejudice to proceedings was
57 Piers Akerman, 'Free to speak up for justice', Daily Telegraph, 1st ed, 18 September 1997, 11. 58 Ex Parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242.
36 incidental. The court emphasised instead that each case requires a balancing exercise between the competing public interests in the administration of justice and the freedom of discussion of public affairs, in order to determine whether or not contempt has been committed. However, some of the Justices of the High Court in their judgments qualified the balancing approach to the public interest principle.
Firstly, where the contempt is intentional the public interest principle cannot be used to avoid liability for contempt.60 However, the court did not base its decision on this proposition because on the facts in Hinch it would be possible to argue that at least the third of his broadcasts was done with the knowledge that it may have a tendency to prejudice the accused's trial given that the Attorney General had already instituted proceedings for contempt against Hinch for his first two broadcasts on the matter.
However, the court did not discuss the intention of Hinch in considering the public interest principle, despite general suggestions that an intention to prejudice proceedings may exclude the application of the public interest principle. As the
NSWLRC discussion paper says it remains unclear whether material which is published with an intention to prejudice, or with the knowledge that it may prejudice particular proceedings, could ever be found not to constitute a contempt on the basis of the public interest principle.61
Secondly, where the material is directed at the guilt or innocence of an accused, the
High Court held that the public interest required to outweigh the public interest in a
59 (1987) 164 CLR 15. 60 Ibid, (Deane J), at 52-53 (Toohey, J), at 69-70 (Wilson, J) at 43 and (Gaudron, J) at 86. 61 New South Wales Law Reform Commission, Discussion Paper 43, Contempt by Publication (2000) at 270.
37 fair trial would have to be very substantial.62 Justice Deane stated that where the publication implies or suggests the guilt of the accused, or canvasses matters directly related to the issue of guilt, the public interest defence would not be available.63 This definition would seem to accord with Long's64 case in that material which seemed to suggest his guilt by virtue of publication of his prior convictions and his alleged prior offences before he had been charged. Justice Deane, without deciding the issue, noted that reference to the accused's previous convictions on its own would have been sufficient to place the broadcast beyond justification on public interest grounds.65 Certainly it was not necessary for Hinch to mention the accused's convictions as he could simply have referred to the current charges being faced by the accused to alert the public to the danger of child abuse and the fact that the accused continued to hold a senior position in a children's organisation. Statements to that effect would probably have not amounted to contempt since they were simply the bare facts of the case. Since the Hinch case courts have reiterated the High
Court's formula of the public interest principle as requiring a balancing exercise between the public interests in freedom of discussion and in the fair administration of justice.66 However, publications that have been found to be in the public interest have not referred specifically to the facts of relevant criminal proceedings so the courts have not had to provide much more guidance about this issue. The NSWLRC has provided some guidance in its recommendation 2067 of its report Contempt by
62 Hinch v Attorney General (Vic) (1987) 164 CLR 26-27 (Mason CJ). 63 Hinch v Attorney General (Vic) (1987) 164 CLR 58-59. 64 R v Long (2002) QSC 054 65 Hinch v Attorney General (Vic) (1987) 164 CLR 58. 66 See R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; R v WA Newspapers Ltd; Ex parte Director of Public Prosecutions(WA) (1996) 16 WAR 518. 67 New South Wales Law Reform Commission Report 100 Contempt by Publication (2003) Recommendation 20: Legislation should provide that a person charged with sub judice contempt on account of responsibility for the publication of material should not be found guilty if: (a) the material relates to a matter of public interest;
38 Publication where it proposes that a balancing approach may be the best way to deal with situations that involve competing public interests.
This statutory approach recommendation contains the main elements of the principles developed by the High Court in Hinch. However, according to the
NSWLRC68 it defines more precisely than does the case law what matters need to be weighed against each other. The case law refers to the protection of the public interest in the integrity of the criminal justice system or public interest in a fair trial as the main interest against which others must be weighed. The recommendation defines how this public interest might be harmed; for instance, the creation of a risk of influence on those involved in pending legal proceedings. Of interest to my thesis is that the NSWLRC recommends that in cases where the media invoke the public interest in the free discussion of the subject matter of the published material, it should also be relevant for courts to consider whether such discussion would suffer significantly if the publication were delayed until the risk of prejudice has ceased. If the publication could have been postponed for a few days, for example, and if so delayed could still have made a contribution to the public discussion, it is arguable that the balance should be weighed in favour of the harm rather than the benefit.69
This strongly supports the view that by not reporting that an accused is under investigation freedom of speech is not denied it is merely postponed for as long as it takes for an accused person to receive a fair trial and that any balancing exercise
and (b) the public benefit from the publication of the material, in the circumstances in which it was published, and from the maintenance of freedom to publish such material, outweighs the harm caused to the administration of justice by virtue of the risk of influence on one or more jurors, potential jurors, potential jurors, witnesses, potential witnesses and/or litigants created by the publication. 68 Ibid, 203. 69 Ibid.
39 should be weighted in favour of the accused's presumption of innocence not the other way around. `
2.1.2 Public Safety
Some in the media have suggested the publication of prejudicial information about alleged dangerous criminals is not only in the public interest but a matter of public safety. For example, if a person accused of a particularly violent crime is at large then it would demonstrably be in the public interest to publicise the fact that the person has a history of violence and should not be approached. There has also, been a case in Victoria where the media were allowed to warn the public of housebreakings by the accused in the course of his flight.70 On the other side of the coin there has been at least one occasion where this privilege has been abused.
In Attorney General (NSW) v Macquarie Publications Pty Ltd,71 an accused was charged with sexual offence against a young person. When released on bail, he assaulted a woman and was re-arrested but escaped from custody. He also had several previous convictions. The local newspaper published a photograph of the accused and an article about him, which mentioned his criminal history. In his affidavit to the court the editor sought to justify the publication by stating that he wanted to inform the citizens of the town that the accused was dangerous and that he had hoped that someone would provide information to the police concerning his whereabouts. However, the person who completed the article after the editor had left for the day received information from the police shortly before the publication
70 Davis v Baillie [1946] VLR 486 at 495. 71 (1988) 40 A Crim R 405.
40 deadline, that the accused had been apprehended. The NSW Appeal Court upheld the contempt conviction and the newspaper was fined $10,000 and ordered to pay costs.
The Australian Law Reform Commission has considered whether it is necessary to provide in legislation for a 'public safety' defence as a ground of exoneration from liability for contempt.72 The Phillimore Committee in the United Kingdom did not consider it desirable to introduce a 'public safety' defence. It took the view that the sorts of situations attracting a 'public safety' defence would rarely arise and it would simply lead to greater uncertainty to introduce into legislation a defence to meet this situation. The Committee considered it more appropriate to leave considerations of public safety as a factor mitigating penalty on conviction for contempt. On the other hand, the ALRC recommended that legislation expressly provide for a 'public safety' defence rather than leaving it to the discretion of the prosecuting authority. It said the terms of the defence should be limited to protecting publications which are reasonable or desirable to facilitate the arrest of a person, to protect the safety of a person or of the public generally, or to facilitate investigation into an alleged criminal offence.73
More recently The New South Wales Law Reform Commission has recommended
'public safety' as a ground of exoneration for the media.74 After considering submissions from media organisations and other interested parties the Commission recommended:
72 See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 143-145; Australian Law Reform Commission, Contempt (Report 35, 1987) at paras 302, 330. 73 See Australian Law Reform Commission, Contempt (Report 35, 1987) Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 31).
41
Legislation should provide that a person charged with sub judice contempt on
account of responsibility for the publication of material should not be found guilty if
the publication the subject of the charge was reasonably necessary or desirable to
facilitate the arrest of a person, to protect the safety of a person or of the public, or to
facilitate investigations into an alleged criminal offence.75
Unlike the ALRC the NSWLRC recommended the burden of proving the elements of the proposed defence should not be on the defendant. It should be framed as a matter to be negatived by the prosecution. This recommendation could be seen as necessary in the interests of clarity for the media to know in advance whether they might be prosecuted rather than relying on prosecutorial discretion. However, there is a strong argument this recommendation be tightened up especially where it relates to publication of prior convictions. While there is a public interest in notifying the public that a person is dangerous and at large there is no justification in mentioning the accused's criminal history, especially when no charges have been laid. This danger was recognised by the Victorian Bar Council in its submissions to the
NSWLRC Discussion Paper 43 where it warned of the defence being used to conduct trial by media of a person being pursued by the authorities.76 This danger to the public scenario is one of the few exceptions to the thesis’s argument that suspects be publicly identified before being charged.
2.1.3 Open Justice
74 New South Wales Law Reform Commission, Contempt by Publication (Report 100, 2003) Recommendation 21. 75 Ibid. 76 Victorian Bar Council, submission to New South Wales Law Reform Commission, Contempt by Publication, (Discussion Paper 43, 200) at para. 24.
42 The right to freedom of speech embraces the public right to criticise and scrutinise court proceedings. It has been argued that the principle of open justice is just as fundamental to a democratic society as freedom of speech.77 Nevertheless there is no common law right to open justice. As Patrick Keyzer has pointed out, there is a common law right to justice, and there is a common law principle that the pursuit of justice is ordinarily done in open court.78 But the principle of open justice was always qualified.79 Probably the legal aphorism most well known by non-lawyers is that of Lord Hewart from Rex v Sussex Justice; Ex parte McCarthy: 'it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done'.80 Certainly it is an accepted doctrine within the Australian justice system with the High Court expressly applying the aphorism a number of times81 since the landmark case of Scott v Scott82 nearly 100 years ago. The case followed a divorce on the grounds of impotence of the husband. The case had been heard in camera. It was uncontested and a decree was pronounced. The petitioner then sent copies of the proceedings to the husband's father and sister and to a third person. For this act, she was held to be in contempt of the order which directed the proceedings to be held in camera. Earl Loreburn made it clear that the trial judge's discretion to hear matters in private was controlled by limitations when he said that 'the inveterate rule is that justice shall be administered in open court and only where the subject-matter of the action would be destroyed by
77 Walker, C, 'Fundamental Rights, Fair Trials and the New Audio-Visual Sector' (1996) 59 Modern Law Review 517 at 517: "Because courts are a State responsibility, there is a legitimate demand for democratic accountability and discussion". 78 Keyzer, P.,' Media Access to Transcripts and Pleadings and ‘Open Justice’: A Case Study' (2002) Vol. 2 No.3 The Drawing Board: An Australian Review of Public Affairs p.210. 79 Daubney v Cooper [1829] 1 B & C 237 at 240; Scott v Scott [1913] AC 417 at 478; John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 and Cunningham v The Scotsman Publications Ltd [1987] SLT 698 at 705-706. 80 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259. 81 See eg Stollery v Greyhound Racing Control Board (1973) 128 CLR 509 at 518-519; Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 351-352; Webb v Hay v R (1994) 181 CLR 41 at 47.
43 the hearing in open court or where there was a well settled exception to the general rule, might the doors be closed'.83
In Russell v Russell84 the Australian High Court held that a provision in the Family
Law Act 1975 (Cth) providing that state courts exercising federal jurisdiction under the Act should conduct family law proceedings in closed court, was invalid. In the more recent case of Raybos Australia Pty Ltd v Jones85 an application for a suppression order was denied on the principle of open justice. Therefore it may be generally supposed that the conflict between the open justice principle and the sub judice principle is generally resolved in favour of open justice. Certainly journalists believe they have a duty to tell their readers about matters of public interest and that their readers have an interest in receiving this information. But, as noted earlier, the public interest in protecting fair trials can conflict with the public interest in freedom of speech. The matter of a suspected person being named before being charged is not necessarily covered by the open justice principle since, by definition, the matter has yet to reach the court. But at that point it can be argued that the presumption of innocence interests of the person charged are paramount and their name should not be published. Also, publishing the name of a person charged with a crime before they appear in court pre-empts their right to apply to the court for a suppression order.
However, as noted above, to publish a person’s name in these circumstances is not in contempt of court. Nor does it appear to breach any code of practice.
82 [1913] AC 417. 83 ibid 445. 84 (1976) 134 CLR 495. 85 (1985) 2 NSWLR 47.
44 In years gone by, the convention by the media was that particulars of a person arrested for, or charged with a crime, were not published before the offender appeared in court. This was partly because of the police policy of not releasing the person’s name until this time and partly a matter of prudential practice in avoiding exposure to a defamation suit should the charges be dropped before a court appearance. In criminal proceedings it has long been recognised that non-publication orders could be made in order to maintain the purity of the administration of justice.
For example in the 19th century case of R v Clement86 it was held that a Court of
General Gaol Delivery had the power to make an order prohibiting the publication of the proceedings pending a trial likely to continue for several successive days and to punish the disobedience of such order by a fine. In that case a number of defendants were jointly charged with high treason. Applications were successfully made for separate trials of each of the accused. A close reading of R v Clement suggests that a court's power was not just limited to preventing the contamination of witnesses but could be used whenever it was necessary to do so to ensure that the accused had a fair trial. In Scott v Scott that decision was not overruled. Indeed Lord Atkinson referred to it as a 'weighty authority'.87
Subsequent authority in Queensland in J v L & A Services Pty Ltd (No 2)88 has recognised a limited power of exclusion at common law including limited and temporary restrictions on publicity during the course of jury proceedings in order that jurors may not become contaminated. These cases therefore can be said to recognise that courts have an overriding duty to ensure that accused persons have fair trials and that they do have the power at common law to suppress names or evidence where
86 [1821] 4 B & Ald 218; 106 ER 918. 87 [1913] AC 417 at 453-454.
45 applicable. It also gives important judicial support to my thesis that the names of suspects be suppressed until they appear in court.
2.1.4 Statutory exceptions to the principle of open justice
While there is common law authority for the suppression of identifying details in an otherwise open court there are also statutory exceptions to the principle of open justice. This indicates legislators, and therefore the community, recognise there are occasions where the administration of justice takes precedence over the principle of open justice. For that reason it is relevant to examine those statutory exceptions and the reason for their application. In most Australian jurisdictions courts are invested with the power, exercisable in specified circumstances, to prohibit or restrict the publication of reports of proceedings.89 These powers are not uniform as they vary in terminology and in the material which they aim to prevent coming before the public.
They supplement rather than replace, the common law exceptions mentioned above and because they represent a departure from the principle of open justice and restrict freedom of speech, these statutes are interpreted narrowly.90
However, although construed strictly, the statutory exceptions are usually wider in scope than their common law counterparts and therefore intrude more widely upon the principle of open justice. They usually either require a court to be closed to the public or forbid the publication of certain information about a case, or they vest the court with a discretion to make such orders, in which case the circumstances in
88 [1995] 2 Qd R 10 at 45. 89 Federal Court of Australia Act 1986 (Cth), s 17 (4); Evidence Act 1971 (ACT), ss 82,83, 84; Crimes Act 1900 (NSW), s 578 (4) ; Evidence Act 1939 (NT), ss 57,59; Justices Act 1886 (Qld), s 71; Evidence Act 1929 (SA), s 68; Justices Act 1959 (Tas), s37; Magistrate's Court 1989 (Vic.), s 126; County Court Act 1958 (Vic), s 80; Supreme Court Act 1986 (Vic), s 18; Evidence Act 1906 (WA), ss 11, 11A.
46 which such orders can be made are outlined in the legislation. Finally, it is unclear whether statutory suppression orders bind all members of the public whether or not they are present at the proceedings when the order is made. This situation has led to considerable media disquiet.91 A media organisation however, may seek to be heard when an application is made for a suppression order or to appeal against the making of a suppression order. There are numerous decisions recognising the standing of the media to challenge an order after it has been made,92 although it is less clear whether this means they have an absolute right to be heard in the absence of legislation such as that which operates in South Australia which does give the media standing to make submissions when an application is made for a suppression order.93
Nevertheless, the situation in most Australian courts in recent years has generally been to allow the media to be heard when principles of open justice are in issue.94 In
New South Wales the issuing of non-publication orders appears to favour the principle of open justice over all else. The principal authority on this subject in that state is John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales 95 where
McHugh JA said that the only occasion the court could depart from the fundamental rule that justice must take place in an open court was when its observance would frustrate the administration of justice. Furthermore, he said, 'in order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure
90 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55; Herald & Weekly Times Ltd v Magistrates' Court of Victoria (1999) 2 VR 672; R v Pomeroy [2002] VSC 178. 91 Steven Scott, 'Hit or miss system for notifying suppression orders' (2005), Gazette of Law & Journalism, http://www.lawpress.com.au/genews/ge162_supression_ orders_210105.html ( 21 January 2005) 92 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; The Herald & Weekly Times Ltd v Braun [1994] 1 VR 705; Nine Network Australia Pty Ltd v McGregor & Ors (2004) NTSC 27. 93 Evidence Act 1929 (SA) s 69a (5) and (9). 94 L v ABC & Ors (2004) NTSC 5; John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) NSW CA 324; Channel Seven Adelaide Pty Ltd v Draper (2004) SASC 351.
47 the proper administration of justice in proceedings before it'.96 The test of 'necessity' was most recently followed in John Fairfax Publications Pty Ltd & Anor v District
Court of NSW & Ors97 where Spigelman CJ noted that the test must be applied with
'strictness' and only where 'the objective of ensuring the fairness of a subsequent trial cannot be achieved in any other way'.
The view of experienced trial judges is that juries approach their task in accordance with their oath, listen to the directions given to them to determine guilt only on the evidence and implement them.98 A similar situation exists in Victoria.99 In
Queensland, suppression orders in criminal matters, other than situations where children are involved, are virtually unheard of. However, in the Northern Territory their legislation more closely resembles South Australia. Recently, the Full bench of the Supreme Court in Nine Network Australia Pty Ltd v McGregor100 approved the test stated by Martin J in Advertiser Newspapers Ltd v Bunting & Ors101 that 'once the court is satisfied that there is a realistic possibility of creating the relevant risk
(emphasis mine) of prejudice to the administration of justice a court should not hesitate to use the power of suppression'. This decision was followed most recently in L v Paul Tudor-Stack102 which concerned an unsuccessful challenge to a suppression order made in the case of a prominent politician charged with child pornography and sexual abuse. In his judgment Mildren J said the test of 'necessity' was not the test to be applied in considering whether or not to make a suppression
95 (1986) 5 NSWLR 465. 96 Ibid 476-477. 97 John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) NSWCA 324 at para. 51 98 Ibid paras 102-105. 99 Supreme Court Act 1986 s 19(b); see also Director of Public Prosecutions v Carl Williams & Ors (2004) VSC 209 per Cummins J. 100 (2004) NTSC 27 at para 51. 101 (2000) SASC 458 at para 19.
48 order under the Commonwealth Evidence Act.103 The facts were that the politician had appeared in the Magistrate's Court where he had been charged with possession of child pornography. Orders were made in the Magistrate's Court to suppress his name because at the time of the order it was anticipated the accused would also be charged some time later with a number of sexual offences against children dating back several years and the publication of his name would prejudice any subsequent trial.
The accused was subsequently charged with the sexual offences and a suppression order was made. The complainant then made application before the Supreme Court to have the suppression order relating to the child pornography charges lifted in the interests of open justice. In rejecting the application, Mildren J said he had to consider the 'relevant risk' (to the administration of justice) in relation to the period of time likely to elapse between then and the date of trial as well as the fact that the accused was well known in the community and was accused of a crime that attracted considerable repugnance.104
In those circumstances his Honour was satisfied that there was a realistic possibility of prejudice to the accused's ability to receive a fair trial. This decision would seem to accord with commonsense in that none of the usual remedies, that is, giving directions to the jury to ignore everything but the evidence or perhaps delaying the start of the trial would realistically overcome the prejudice to the accused, particularly in a relatively small community like Darwin.
Of course, suppression orders can only be applied for once an accused appears in court. While the courts have in some cases granted suppression of name this is not
102 L v Paul Tudor-Stack (2005) NTSC 19 103 Evidence Act (Clth) s 57.
49 the case when an accused is merely under suspicion. Therefore, by naming an accused before they appear in court and before the sub judice takes effect the media destroys an accused's right to apply for a suppression order because there would be little use in applying for suppression once the person's name has already been published. It can hardly be a desirable situation whereby the media has the power to reduce a person's legal rights for no good reason.
2.1.5 Other non-publication provisions
There are also numerous other statutory provisions which recognise that justice requires that the general rule of openness be modified in particular cases. For example, the public reporting of proceedings in the Children's Court is prohibited under the Queensland Child Protection Act 1999 as it is not open to the public, unless approved by the court. The Queensland Juvenile Justice Act 1992 prohibits the publication of an identifying matter in relation to a juvenile's criminal proceeding.105 And under the Queensland Justices Act 1886, justices can, in the interests of public morality, require some or all persons to be excluded.106 Therefore, the idea of open justice is not absolute.
It is also pertinent to note that contempt restrictions apply on identification once an accused appears in court. Indeed, police often go to great lengths (i.e. covering up an accused's face by various means) while the accused walks to and from court but there are no restrictions on the media from identifying suspects before they have been formally charged. However, from time to time cases arise where a person charged or suspected of an offence have allowed his or her identity to be published before they
104 L v Paul Tudor-Stack (2005) 19 at para. 21. 105 s 62.
50 appeared in court, usually through comments made to the media. A recent case in point being Scott Volkers who was photographed arriving at the police station to be formally charged, and who later conducted an impromptu media conference outside his home.107 Therefore, because there is no formal recognition of what is normal practice it is my argument it should be clarified in legislation along the lines of the
NZLRC recommendation that publication of identifying details of a person charged with an offence before they appear in court should be prohibited unless the person consents. On this approach, the principle that the courts administer justice openly and in public is not viewed as absolute. For even Bentham recognized that openness was not absolute.108
The better approach is to acknowledge that the open court principle may conflict with other values, and seek to resolve the tension by contextual balancing because in the final analysis, the open court principle is not an end in itself but a means to promote the rule of law and the administration of justice. Openness that defeats justice by prejudicing the accused’s right to a fair trial operates to corrupt rather than promote the rule of law. A lesson can be learned from the American experience where open justice has come to mean the media has unfettered power to comment on all aspects of court proceedings. According to Professor David Anderson of the
University of Texas Law School, American courts long ago foreswore the use of the contempt power to control media coverage in court proceedings.109
106 s 71. 107 Paula Doneman and Wayne Smith,‘Top swim coach on charges’, The Courier-Mail, 27 March 2002, 1. 108 Bentham, J., Rationale of Judicial Evidence Specially Applied to English Practice, vol 1 (1827) 541-542. 109 Prof. David Anderson, 'Lessons from an Impeachment', (1999) 1 UTS Law Review 63.
51 In Nebraska Press Association v Stuart110 it was held that a judge may restrain publication only if he or she can show that there is no other means of assuring a fair trial, that the restraint will be effective to prevent prejudice and that the order prohibits no more than necessary. Since then few judges have attempted to impose restrictions on publication and even fewer have been upheld.111 According to
Anderson this has led to the media being given free rein to interview parties, witnesses, lawyers, judges and jurors and to disclose inadmissible evidence.112
Anderson is of no doubt that much of the information that appears in the media is there for the very purpose of influencing the outcome. He writes that the sources, whether anonymous or on the record, are rarely disinterested:
They want the public to accept their version of events, their assessment of
credibility, their theory of the case, and their views as to culpability. In the culture
that 'open justice' has produced, lawyers and parties feel pressure to enter the media
contest, whether they want to or not. 113
Anderson cites as an example the White House sex scandal where he said the White
House, Hillary Clinton and the President's lawyers used the media for months in an attempt to discredit the special prosecutor Kenneth Starr, his investigation and his witnesses.114 Starr, in return, justified his office's leaks to the media on the grounds that they were countering misinformation being spread by the White House.115 From this and other examples it can be deduced that the American judiciary has decided that 'trial by media' is acceptable.
110 (1976) 427 US 539. 111 Compared with Noriega 917 F 2d 1543 (11th Cir. 1990). 112 Prof. David Anderson, 'Lessons from an Impeachment', (1999) 1 UTS Law Review 63 113 Ibid, 67. 114 Ibid.
52
There are signs Australia is moving towards the US system. For example, the recent media appearance of a female security guard who shot dead a robber who had beaten her up outside a Sydney pub during a bungled armed hold-up.116 Karen Brown and her lawyers were told the police were interested in speaking to her as a possible murder suspect. She delayed speaking to police ostensibly on the grounds that she had still not recovered from the injuries she received in the attack. However, she was not too unwell to speak to a Sunday tabloid about her version of events and later recorded an interview with a television current affairs show for the reported sum of
$100,000.117 She said later the money would go towards her legal costs. The interview aired after she had received a court attendance notice to answer one count of murder. On ABC radio the NSW Director of Public Prosecutions, Nicholas
Cowdery, announced he had instituted proceedings under the Confiscation of
Proceeds of Crimes Act 1989 (NSW) to recover the money however, no action was taken for contempt of court nor was any attempt made to prevent the airing of the interview.118 The dramatic appearance of a tearful Ms Brown on national television still visibly scarred from the attack can only have engendered considerable public sympathy for her and potentially infected the minds of potential jurors.
This scenario is also one of the few exceptions to the thesis argument that suspects not be publicly named before charge. That is, if a suspect voluntarily identifies themselves then they accept all the risks and consequences that flow from their actions.
115 Ibid. 116 'Guard faces murder charge', The Courier-Mail, 2 August, 2004 at 5. 117 Peter Meakin, Sydney Morning Herald, 3 August 2004. 118 ABC Radio, 'PM" Jayne-Maree Sedgman, Sydney, 4 August, 2004, 6pm.
53 2.2 A FAIR TRIAL
Truth like all other good things, may be loved unwisely – may be pursued too keenly
– may cost too much. 119
NSW Chief Justice Spigelman J in a recent public speech said restraints on the processes for determining truth are multi-faceted:
They have emerged in numerous different ways, at different times and affect
different areas of the conduct of legal proceedings. By the traditional common law
method of induction there has emerged in Australia’s jurisprudence the principle of a
fair trial. It is reflected in numerous rules and practices and manifests itself in
virtually every aspect of legal practice and procedure, including the laws of
evidence. 120
It is interesting that Spigelman refers to the 'principle of a fair trial' and not 'a right
(my emphasis) to a fair trial'. While there are other jurisdictions where a right to a fair trial is enshrined either in a Constitution or in a statute this is not the case in
Australia. Although two former Justices of the High Court (Deane and Gaudron JJ) have concluded, albeit in obiter dicta, that the right is constitutionally guaranteed.121
Spigelman contends the terminology of 'right' appears to be more appropriate in circumstances where something in the nature of a freestanding right is specifically enacted. He said the 'principle of a fair trial' emphasizes that what is involved in our
119 Pearse v Pearse [1846] 1 De G & Sm 12 at 28-29; 63 ER 950 at 957. 120 Spigelman J, ‘The Truth can cost too much: The principle of a fair trial’ (2003) fourth Gerard Brennan lecture, Bond University, Gold Coast,Queensland. http://www.lawlink.nsw.gov.au/sc/sc/nsf/pages/spigelman_031025 (accessed 22 March 2004). 121 Dietrich v R (1992) 177 CLR 292, 326 (Deane J), 362 (GaudronJ).
54 jurisprudence is a standard of an inherently flexible character.122 A principle, as
Ronald Dworkin has identified:
States a reason that argues in one direction but does not necessitate a particular
decision, there may be other principles or policies arguing in the other direction. If
so, our principle may not prevail, but that does not mean that it is not a principle of
our legal system, because in the next case, when these contravening considerations
are absent or less weighty, the principle may be decisive. 123
The principle of a fair trial is one of the cornerstones of Australia’s practice and procedure, including the laws of evidence. The unifying principle of a fair trial was put this way by Deane J:
It is desirable that the requirement of fairness be separately identified since it
transcends the content of more particularized legal rules and principles and provides
the ultimate rationale and touchstone of the rules and practices which the common
law requires to be observed in the administration of the substantive criminal law.124
The significance of the principle of a fair trial has been characterized in numerous
High Court judgments in recent years as 'the central thesis of the administration of criminal justice'125; as 'the central prescript of our criminal law'126; as a 'fundamental element'127; and as an 'overriding requirement'.128 It was referred to in 1923 by Issacs
122 Spigelman, supra n 118, 2. 123 Dworkin, R., ‘Taking Rights Seriously', 1st ed, Duckworth, London, 1978 p. 26. 124 Dietrich v The Queen (1992) 177 CLR 292 at 326. 125 McKinney v The Queen (1991) 171 CLR 468 at 478. 126 Jago v The District Court of New South Wales (1989) 168 CLR 23 at 56-57 per Deane J. 127 Dietrich v The Queen (1992) 177 CLR 292 at 299 per Mason CJ and McHugh J. 128 Dietrich v The Queen (1992) 177 CLR 292 at 330 per Deane J.
55 J 129 as the 'elementary right of every accused person to a fair and impartial trial'. An impartial tribunal is crucial to our system of criminal justice. An impartial tribunal has also been recognised as a fundamental human right. Article 14(1) of the
International Covenant on Civil and Political Rights provides in part:
In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public hearing by
a competent independent and impartial tribunal established by law.
The principle of a fair trial has been described as the inherent power of a court to control its own processes and, particularly its power to prevent abuse of its processes.130 So while there is no constitutional right to a fair trial it seems certain aspects of the principle of a fair trial will be found to have some constitutional protection. For example in Chu Kheng LimBrennan, Deane and Dawson JJ pointed out the legislative power of the Commonwealth did not extend to:
The making of a law which requires or authorizes the courts in which the judicial
power of the Commonwealth is exclusively vested to exercise judicial power in a
manner which is inconsistent with the essential character of a court or with the
nature of judicial power. 131
Their view has been bolstered by similar observations by different judges of the High
Court over recent years with the dominant view appearing to be that some form of
129 See The King v MacFarlane; ex parte O’Flanaghan and O’Kelly [1923] 32 CLR 518 at 541-542. 130 Walton v Gardiner (1993) 177 CLR 378 at 392-293. 131 Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27.
56 protection of procedural rights is inherent in Chapter III of the Constitution.132 That principle is entrenched by the Constitution's requirement of the observance of judicial process and fairness that is implicit in the vesting of the judicial power of the
Commonwealth exclusively in the courts which Chapter III designates. The requirement that the trial of a person accused of a crime be fair, being a legal one, is encompassed by the requirement that such a trial be in accordance with law.
According to Spigelman J: 'in the same way as has occurred with the principle of open justice, the principle of a fair trial has become so fundamental an axiom of
Australian law as to be entitled constitutional significance'.133 This leads to the question of what are the attributes of a fair trial?
On close examination it would be difficult to describe the almost infinite variety of situations where a trial has been so deprived of the quality of fairness that a miscarriage of justice has occurred. Of course a number of identifiable issues have arisen over the years and led to similar judgments as to the effect on the fairness of proceedings. However, it is not within the ambit of this thesis to consider the philosophy of the concept of fairness. As Deane J put it in Jago:
The general notion of fairness which has inspired much of the traditional criminal
law of this country defies analytical definition. Nor is it possible to catalogue in the
abstract the occurrences outside or within the actual trial which will or may affect
the overall trial to an extent that it can no longer properly be regarded as a fair one.
Putting to one side cases of actual or ostensible bias, the identification of what does
and what does not remove the quality of fairness from an overall trial must proceed
132 Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 607 per Deane J and 703-704 per Gaudron J; Nicholas v The Queen (1998) 193 CLR 173 at 185 per Brennan CJ,208 per Gaudron J, 220-221 per McHugh J, 232 per Gummow J.
57 on a case by case basis and involve an undesirably, but unavoidably, large content of
essentially intuitive judgment. The best that one can do is to formulate relevant
general propositions and examples derived from past experience. 134
Lord Bingham said in R v H; R v C: 'The achievement of fairness in a trial on indictment rests above all on the correct and conscientious performance of their roles by judge, prosecuting counsel, defending counsel and jury'.135 To that he might also have added: 'and the media'. Because 'trial by media'136 by its very nature detracts from the notions of what the law describes as a fair trial. That is a fair trial free from prejudice. A trial where jurors already have preconceived notions of the guilt or innocence of the accused can hardly be said to be 'a fair and impartial trial' as defined in The King v MacFarlane; ex parte O'Flanaghan and O'Kelly.137 Much of the evidence tendered by the Crown in a criminal trial is prejudicial to the accused in the sense that it implies guilt. Some evidence which is highly prejudicial, however, is not disclosed to the jury. Rules of evidence have developed with respect to various classes of evidence governing the question whether such evidence should be admitted in certain circumstances or not at all, and limiting the general discretion of the judge in certain ways. For example:
As a general rule the prosecution is debarred from tendering evidence to show that
the defendant is of bad character, or is guilty of criminal acts other than the offence
charged, or has a propensity to commit criminal acts of the same nature as the
133 Spigelman, supra n 116, .5. 134 Jago v The District Court of New South Wales (1989) 168 CLR 23 at 57. 135 [2004] UKHL 3 at para 13. 136 'Trial by Media' is a phrase made popular in the 20th century describing the impact of media coverage on a person's reputation by creating a widespread perception of guilt or innocence in the media regardless of the jurisdiction or findings of a court of law. 137 (1923) 32 CLR 518 at 541-542.
58 offence charged, merely for the purpose of leading to the conclusion that the
defendant is a person likely from his criminal conduct or character to have
committed the offence for which he is being tried. 138
Even where evidence is apparently admissible, the presiding judge has discretion to disallow it if its admission 'would operate unfairly against the defendant'.139 Thus the judge may exclude illegally obtained evidence which is technically admissible.140
Evidence ought to be excluded 'if its prejudicial tendency outweighs its probative value in the sense that the jury may attach undue weight to it or use for inadmissible purposes'.141 Yet none of these rules restrain the media when they undertake to 'try' accused persons before they have appeared in court through expositions of their 'bad' character. This surely would put at risk an accused's likelihood of receiving a fair trial whatever remedies were put in place to ensure that he or she did. It may well be the so called 'free speech cases' which recognised an implied freedom of political communication in the Australian Constitution have encouraged the media in
Australia to push the boundaries in regard to pre-trial prejudicial publicity.
In Nationwide News Pty Ltd142 and Australian Capital Television Pty Ltd,143 a majority of the High Court of Australia had 'distilled from the provisions and structure of the Constitution, particularly from the concept of representative government which is enshrined in the Constitution, an implication of freedom of
138 Halsbury's Laws of England Vol 11, (4th edition, 1976), para. 369, citing Makin v Attorney General for New South Wales [1894] A.C. 57 and Thompson v R [1918] A.C. 221. 139 Callis v Gunn [1964]1 QB 495, at p.501, per Lord Parker C.J. 140 R v Lee (1950) ALR 517. 141 Heydon J D, Cross on Evidence, 2nd Australian Edition, Butterworths, Sydney 1979 at 30. 142 (1992) 177 CLR 1. 143 (1992) 177 CLR 106.
59 communication'. Subsequently in Theophanous v Herald & Weekly Times Ltd144 and
Stephens v WA Newspapers145, a majority of the court extended the operation of the implied freedom doctrine into the field of defamation law. The operation of the common law and State statutes was modified by the creation of a new 'constitutional' defence based upon the implication of freedom of political discourse. Ultimately in
Lange v Australian Broadcasting Corporation,146 all seven justices of the High Court rejected the existence of any freestanding constitutional defence, but confirmed the availability of an expanded defence of qualified privilege in cases of political discussion. The Attorney General (NSW) v X 147 judgment by the NSW Court of
Appeal in which the Chief Justice opined that courts must, as a result of the High
Court cases, now attribute greater weight to the freedom of public discussion when conducting a balancing test would also not have gone unnoticed.
On the other hand the media would argue that in practice the 'implied freedom of political communication' read into the Australian Constitution has not helped them in many defamation cases. One problem is that the precise definition of what constitutes a 'government or political matter' is not yet clear. It was said in Theophanous v
Herald & Weekly Times Ltd148 that 'political discussion' extended to 'all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about'. However, Heerey J in the Rabelais149 case argued that Lange confined the scope of 'political discussion' to matters concerning the system of representative and responsible government but only to the extent that
144 (1994) 182 CLR 104. 145 (1994) 182 CLR 211. 146 (1997) 189 CLR 520. 147 Attorney-General(NSW) v X [2000] NSWCA 199. 148 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 124.
60 the text and structure of the Constitution establish it. At present whether something is a 'government or political' matter is decided on a case by case basis therefore it would be dangerous for the media to rely on the concept when discussing matters coming before the courts. For example, Lange privilege appears to encompass only matters about politics and government 'in an electoral and parliamentary sense'.150
Political communication may be limited to information for decisions about voting.
Most criticism of judicial officers, for example, may fall outside the protection.151
Therefore in terms of its formal doctrine, Lange privilege may protect far fewer media publications than Theophanous.
The American experience has been that the First Amendment has trumped all other rights, including the right to a fair trial and the rights of accused persons. It has also turned that country's judicial system, especially as it pertains to celebrity accused, into a circus where 'trial by media' is an accepted norm. To give just two examples, when American football and media personality, O.J. Simpson was accused, tried and acquitted of murdering his wife and her friend in a very public trial in Los Angeles
California in the mid 1990's. The media circus began with the police chasing
Simpson through the city and television station helicopters overhead beaming the action live around the world. When the trial got underway, a virtual television city was built outside the court.152 Before and throughout the trial defence and prosecution lawyers, potential witnesses and Judge Lance Ito were not only the subject of media speculation, they in fact often gave their opinions freely in news
149 Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67 at 86. 150 Herald & Weekly Times Ltd v Popovic (2003) VSCA 161 151 Ibid 6, 9-10. See also O’Shane v John Fairfax Publications Pty Ltd (2004) NSWSC 140. 152 O’Connor M, 'OJ's Trial Under Way', The Daily Telegraph-Mirror, 28 September 1994, 28.
61 conferences and arranged media statements.153 Then in late 2003, entertainer Michael
Jackson was charged with child molestation. His appearance to plead not guilty to the charges in a small Californian town saw the pop star jump onto the roof of his limousine to greet his fans while vendors sold hot dogs, steaks and t-shirts.154
Although the US experience is peculiar to that country in that the Australian laws of contempt do not apply, the period pre-charge is essentially the same in that anything goes in the media including observations as to the guilt or innocence of the accused, so-called confessional material, prior convictions and 'evidence' of bad character.
However, the US system at least has the safeguard of allowing the defence the right to question potential jurors as to their beliefs in voir dires that can last some weeks something which Australian courts are reluctant to do. To restore the balance, one needs to re-visit Hinch where the High Court made it plain that where publication is directed to the merits of the issue to be determined in pending proceedings (e.g. the guilt or innocence of an accused) then the balance must come down on the side of a fair trial.
To this should be added the word 'imminent' as well as 'pending' proceedings because prejudicial publicity pre-charge can be as equally damaging to a fair trial as in the pending stage. Again, as the thesis argues, the emphasis is not on the denial of freedom of speech, only its postponement in the interests of the due administration of justice. As noted in the introduction, the naming of a suspect at the imminent stage magnifies the damage as it links a person to an alleged crime and is more likely to be remembered by a potential juror. If the suspect is not named until charged then the
153 Whittell G,'Simpson Team Seeks the Ideal Juror', The Australian, 28 September, 1994, 12. 154 McKenna M, 'LA Police Face Probe after Stars' Secrets Sold', The Courier-Mail, 26 June 2003, 12.
62 sub judice restrictions come into effect and only the bare facts of the crime can be reported which may be less damaging to the accused’s chance of a fair trial.
63 3. ANALYSIS OF PRESENT SUB JUDICE CONTEMPT LAW
The term sub judice literally means ‘In course of trial’. It is also often referred to in media terms as being ‘under a judge’. Journalists know, or should know, that from this time on comment about a matter before the courts is fraught with danger.
The object of the law of sub judice law is to prohibit the publication of material that might prejudice civil or criminal proceedings while those proceedings are pending.
The word ‘pending’ is a key word and will be analysed in greater detail further on.
The difficulty is determining the exact time a matter becomes sub judice or ‘under a judge’. Because this thesis concerns criminal proceedings, the law as it relates to civil proceedings will not be examined further. Publications are regarded as contemptuous because their tendency is to place at risk the due administration of justice concerning a particular proceeding.
Elements of sub judice contempt
To constitute sub judice contempt of court it must be established:
(a) that publication took place while proceedings were sub judice155; and
(b) either that:
(i) there was an intention to interfere with the administration of justice in the
proceedings 156; or
(ii) The publication of the material had that tendency.157
155 James v Robinson(1963) 109 CLR 593. 156 See the discussion in Harkianakis v Skalkos (1997) 42 NSWLR 22 at 28 per Mason P. 157 R v David Syme and Co Ltd [1982] VR 173 (Supreme Court of Victoria).
64 Contempt charges against the media are rarely based on the grounds that the media intended to interfere with the administration of justice. Therefore this element of contempt will not be pursued any further.
The majority of sub judice contempt cases involving the media concerns the publication of material which has a tendency to interfere with the administration of justice. The tendency 158 must be clear, or real and definite and there must be a substantial risk of serious interference. The tendency test has been widely criticised for being imprecise and unclear.159 The test is said to be imprecise so far as
'tendency' is a vague and general notion on which to base criminal liability, since it is often impossible to know whether a particular statement will be found to have a tendency to prejudice proceedings. It has also been argued that the test for liability is too broad in so far as it sets too low a threshold for the prosecution to prove contempt, by requiring no more than a 'tendency' to prejudice.160 On the other hand establishing the tendency of the material by reference to the circumstances of each case helps to ensure that the law of contempt does not encroach on freedom of speech without justification.
The New South Wales Law Reform Commission's (NSWLRC) Report on Contempt recommended a reformulation of the test for liability in terms of a 'substantial risk of prejudice', rather than a tendency to prejudice proceedings.161 The NSWLRC
158 Hinch v Attorney- General (Vic) (1987) 164 CLR 1; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25; Attorney-General(NSW) v X [2000] NSWCA 199. 159 New South Wales Law Reform Commission Discussion Paper 43 at paras 4.6 – 4.9; Australian Law Reform Commission, Contempt (Report 35, 1987) at para 288-295; R. Pullan, "Contempt: judicial assertions but no evidence – we are ignorant about the impact of prejudicial pre-trial publicity on jurors' deliberations" (1996) 34 Law Society Journal 48 at 49. 160 NSWLRC Report 100, Contempt by Publication,(2003) at para 4.9. 161 Ibid, Recommendation 2 at para 4.17.
65 position was also supported by the Law Reform Commission of Western Australia's
'Review of the Law of Contempt' that recommended the adoption of the NSWLRC alternative test for contempt by publication. In fact, several Australian judges have in the past applied the 'substantial risk' formulation in determining cases of sub judice contempt.162 Chief Justice Mason favoured the 'substantial risk' formulation because it balanced more appropriately the competing interests in free speech and the administration of justice. He considered the 'tendency' formulation to be vague and uncertain, and perhaps to place too much weight on the protection of the administration of justice over freedom of speech.163
Under the circumstances it is open to question whether there is in fact any real difference in meaning between 'substantial risk' and 'tendency'.164 The Macquarie
Dictionary defines 'tendency' as a 'prevailing disposition to move, proceed, or act in some direction or towards some point, end or result'.165 The courts have noted that the degree of likelihood required by the word is not one of probability but rather a
'real possibility' of interference.166 The High Court has said that the degree of possibility required must be more than a remote possibility that justice will be interfered with.167 Interestingly, in Glennon168 the High Court drew a distinction between its earlier finding that Hinch was responsible for a real or substantial risk of prejudicing Glennon's trial, and its finding that Glennon was able to get a fair trial despite the extent of the contemptuous pre-trial publicity. On the one hand Hinch
162 Hinch v Attorney-General (Vic) ( 1987) 164 CLR 15 at 27-28 (Mason CJ); R v Day [1985] VR 261 at 264. 163 Hinch v Attorney-General (Vic) (1987)164 CLR 15 at 26. 164 NSWLRC Discussion Paper 43 at paras 4.13 – 4.21. 165 The Macquarie Dictionary ,2nd ed, Macquarie Library, North Ryde, NSW, 2001. 166 Attorney General(NSW) v John Fairfax and Sons Ltd (1985) 6 NSWLR 695 at 697-698. 167 Victoria v Australian Building Construction Employees' and Builders Labourers Federation (1982) 152 CLR 25 at 56. 168 R v Glennon (1992) 173 CLR 592.
66 was guilty of a real and substantial risk of prejudicing Glennon's right to a fair trial, but on the other Glennon was still able to get a trial sufficiently free of prejudice.
However, there is no reason why the current 'tendency' test should be changed to a
'substantial' test. The Macquarie Dictionary defines 'substantial' as: 'Having substance, actually existing, not illusory, of real importance or value, of considerable amount'. It could be argued a substantial test would favour freedom of speech to the detriment of a fair trial possibly leading to a scenario where actual prejudice to proceedings would have to be proven before contempt proceedings could be invoked.
This would make it harder for the prosecution to successfully argue that a contempt of court occurred.
The principal aim of sub judice contempt is to prevent publications that may damage a fair trial before any actual damage is done. It is therefore necessary to frame liability in terms of the likelihood of prejudice, rather than punish after prejudice has occurred, in order to deter the media from publishing prejudicial material, and encourage them to exercise proper care. It should not be thought contempt law is unique in its application to prevent an infraction of the law before it occurs. An analogy can be given of legislation regulating industrial safety and road safety.
Employers and drivers may be punished for maintaining an unsafe workplace or driving unsafely even though no one is injured. In this way the law imposes a positive duty to prevent injury from arising, rather than waiting for injury to occur. In this case the injury would be to the accused who would be deprived of his or her right to a fair trial free of prejudice. However, as one commentator has said to speak of contempt as preventative would be misleading; it is more properly a deterrent, and
67 does not always prevent jury prejudice.169 Indeed this is the basis of my thesis that the present contempt laws do not go far enough in deterring the media from prejudicing potential jurors by their publication of prejudicial material before an accused is charged or brought before the judicial process. The chief aim in punishing
‘prejudicial’ publications is to uphold the public interest in the administration of justice as well as the individual’s right to a fair trial. Although some legal experts argue the chief aim is in fact public interest rather than the fair trial argument.170
3.1 WHEN ARE PROCEEDINGS SUB JUDICE?
The restrictions sub judice places on publicity apply from the time when the procedures of the criminal law have been set in motion. This means when a person has been arrested or charged, or if a summons or information has been issued.171 The
New South Wales Law Reform Commission recommends the starting point for sub judice in that state begins with:
(a) the arrest of the accused;
(b) the laying of the charge;
(c) the issue of a court attendance notice and its filing in the registry of the
relevant court; or
(d) the filing of an ex officio indictment.172
Interestingly the New South Wales Law reform Commission does not take the view that the issue of a warrant of arrest does not trigger the sub judice restrictions. It is not clear in Australian law if media reporting is frozen indefinitely until a suspect for
169 Allan Ardill, 'The right to a Fair Trial, (2000), 25 (1) Alternative Law Journal 3. 170 Borrie and Lowe, The Law of Contempt 3rd ed, Butterworths, London, 1996 at 248. 171 James v Robinson (1963) 109 CLR 593.
68 whom a warrant has been issued is caught. However, in the United Kingdom it is law that 12 months after its issue the proceedings cease to be active and the media are then free to comment until the actual arrest.173 Therefore the media were free to describe the notorious and elusive Lord Lucan as a murderer although they may have been exposed to a defamation suit had he re-surfaced and been found to be innocent.
The decision of the High Court in James v Robinson established that, in Australia, proceedings are not sub judice unless they are pending. In this case, a Perth newspaper known as the Sunday Times published two accounts of two killings by a
'wild gunman'. The articles clearly identified Robinson as the gunman and it was related that after killing two named persons in public places and threatening others he had secreted himself in a pine plantation not far from Perth. The reports appeared in the newspapers on Sunday 10th February 1963. It was not until Tuesday 12th
February 1963 that complaints were sworn alleging two murders by Robinson and that on the following day he was charged and remanded in custody. Subsequently the
Supreme Court of Western Australia imposed penalties for contempt of court upon the publishers of the newspaper. The publishers then successfully appealed the decision in the High Court of Australia.
The appellant’s argued there was no reported case in England or the Dominions in which it has been held that a statement made out of court amounted to a contempt of court in the absence of a pending cause. They did concede however, there was a
Scottish case, Sterling v Associated Newspapers Ltd174 which was contrary to the
172 New South Wales Law Reform Commission ,Contempt by publication, Report 100 recommendation 13 at para. 7.27 173 Contempt of Court Act 1981 (UK) sched 1, para 11. 174 [1960] SLT 5.
69 appellants submissions. For their part the respondents argued 'pending' can refer to a matter in which action is intended to be taken but has not commenced. The determination of the police to apprehend Robinson on a charge of unlawful killing amounted to setting the criminal law in motion. To distinguish the case where an arrest is imminent from the case where an arrest has actually been made is to draw an artificial line. The prejudice is there because it is almost certain that proceedings will very soon be instituted. In Packer v Peacock175 the High Court of Australia followed the reasoning in R v Parke176 in a case where the publication concerned a person who had been arrested and charged before justices but not yet committed for trial.
However, in these two cases charges had been laid, the accused had been charged and was in custody, and the charges were such as might have to be tried in the Court.
According to the Court in James v Robinson they knew of 'no case where publications of the character here in question, made before the commencement of proceedings in any form, have been held to be contempts'.177 But Counsel argued that a publication calculated to prejudice future proceedings will constitute contempt provided the proceedings are imminent. The High Court was also referred to the observation of Lord Hewart in R v Daily Mirror; Ex parte Smith178 that some day the question whether there may be contempt of court when proceedings are imminent but have not yet been launched may have to be decided. However, the Court argued
Wills J qualified his obiter remarks in R v Davies179 when in specific reference to the decision in R v Parke he spoke of the tendency to poison the stream of justice he added 'in the Court', meaning the Court which ultimately tries the case after
175 (1912) 13 CLR 577. 176 [1903] 2 KB 432. 177 (1963) 109 CLR 605 (Kitto,Taylor,Menzies and Owen JJ). 178 [1927]1 KB 851.
70 committal. Furthermore, the Court quoted with approval Lord Erskine in Ex parte
Jones180 that Lord Hardwicke 'considered persons concerned in the business of the court as being under the protection of the Court; and not to be driven to other remedies against libels upon them in that respect'.181 The Court rejected the notion that 'poisoning the stream of justice before it begins to flow' was an adequate test for determining what is and what is not contempt of court. In the end the Court found that despite the unusual facts of the case there was no foundation for a departure from the rule that contempt cannot be committed until proceedings are pending in a court. In a separate judgment Windeyer J reached the same conclusion however, he made the telling point in quoting R v Sharpe and Stringer182 that it does not mean prejudicial matter that is not summarily punishable as contempt can be published with impunity. 183 In this instance Windeyer was referring to another offence namely, conduct tending to pervert the course of justice.
The real question to answer, as Windeyer J. alluded to was: 'Would the articles tend to prejudice a fair trial of Robinson on a charge of wilful murder, the crime with which he was later charged? That is the first question. If the identity of a person who did a criminal act is in doubt, or could come in question at a trial, then obviously it is unlawful to publish in a newspaper that a particular person is the criminal'.184 In this case there could be no question that Robinson was the assailant. Nevertheless the decision of the High Court has been criticized in Borrie & Lowe185 who point out that
179 [1906] 1 KB 32. 180 [1806] 13 Ves 237 (33 ER 283). 181 [1806]]13 Ves 238 (33 ER 284). 182 [1938] 1 All ER 48 ; (1938) 26 Cr.App. R.122. 183 [1963] 109 CLR 618. 184 [1963] 109 CLR 611. 185 Borrie and Lowe, The Law of Contempt 3rd ed, Butterworths , London ,1996 at 248.
71 the common law decisions in England at the time of James v Robinson were not committed to the idea that proceedings had to be ‘pending’.
The Australia media in particular, argue moving the test of when material comes under sub judice rules, from ‘pending’ to ‘imminent’, poses problems of certainty for them. This is a fair point. However, this thesis argues if a statutory ban on naming a suspect before they have been formally charged in court is introduced, then the uncertainty problem would be overcome for the benefit of all concerned.
The issue of timing also arose in Attorney-General for NSW v TCN Channel Nine Pty
Ltd186 in which a video of an arrested man being led around the scene of the crime by police was shown on television, with a report that stated he confessed to a number of murders. At the time of the broadcast the man had been arrested and charged but had not appeared in court. The New South Wales Court of Appeal followed James v
Robinson in that in order for proceedings to be pending it was not necessary to wait until a person had been brought before a court. The NSW Court also cited with approval the statement in Hall v Associated Newspapers187 that 'from the moment of arrest the person arrested is in a very real sense under the care and protection of the court'.
Therefore the position in Australia at the moment is unequivocally that contempt applies from the moment of arrest, at which time the proceedings become ‘pending’.
The basis for determining that an arrest falls within the sub judice period is that it is made for the purpose of bringing a person into the justice system. In this way, a
186 (1990) 20 NSWLR 368. 187 [1978] SLT 241 at 249.
72 person comes within the processes and protection of the court on arrest and the court becomes 'seised' of the matter triggering the operation of the sub judice rule. But if that is the only reason for determining that an act falls within the sub judice period, then, for example, a warrant to search a person’s premises could also be regarded as involving the application of the sub judice rule. The issuing of a search warrant is a judicial act, involving the exercise of judicial discretion, and is therefore a step in the criminal process. However, Australian courts have not given much consideration to the question of whether the issue of a warrant for arrest comes within the sub judice period.
3.2 PRESENT SUB JUDICE CONTEMPT LAW IN OTHER JURISDICTIONS188
3.2.1 England
Sub judice has long been a difficult issue in contempt law in England. As in
Australia, the underlying problem is how to reconcile the interests of freedom of speech with that of a fair trial and at the same time produce reasonable certainty.
This is despite the introduction of the Contempt of Court Act 1981 which was expected to help resolve the issue. The Act came about following a decision in 1971 by the Lord Chancellor to appoint a committee under the chairmanship of Lord
Justice Phillimore to consider whether any changes were required in the law of
England, Wales and Scotland relating to contempt of court. The committee reported in 1974.189 It has been the subject of criticism of legal commentators who claim the
Act imposes an unreasonably high threshold of proof in order to establish
188 Because of space considerations I have contained my analysis to just three other common law jurisdictions. 189 Report of the Committee on Contempt of Court (Cmnd 5794, Vol no. XV, HMSO, University of London Library, 1974).
73 contempt.190 This concern was raised recently by English police concerned that press coverage of a couple charged with the murder of two schoolgirls could jeopardize the prosecution’s case to the extent that any future trial of the accused could be abandoned on the grounds of a 'substantial risk of serious prejudice' under the 1981
Act.191
Contempt of Court Act 1981
The timing provisions under the Contempt of Court Act introduce the notion of
'active' proceedings. Section 2(3) provides:
The strict liability rule applies to a publication only if the proceedings in question
are active within the meaning of this section at the time of publication.
'Active' proceedings are defined by Schedule 1 to the Act. Criminal proceedings are defined192 as proceedings against a person in respect of an offence, excluding appellate proceedings and proceedings commenced by motion for committal or attachment193 in England and Wales or Northern Ireland.
By Schedule 1, para 4, criminal proceedings become active upon:
(a) Arrest without warrant;
(b) The issue, or in Scotland the grant, of a warrant for arrest;
(c) The issue of a summons to appear, or in Scotland the grant of a warrant to
cite;
190 ‘Right to a fair trial under threat as media push contempt law to limit’, The Times, 3 September 2002. 191 ‘Police fear media coverage will jeopardise trials’, The Times, 26 August 2002. 192 Sch 1, para 1.
74 (d) The service of an indictment or other documents specifying the charge;
(e) Except in Scotland, oral charge.
However, Borrie and Lowe194 contend that faced with cases to which the strict liability rule would not apply because the proceedings were not ‘active’ within the meaning of Schedule 1 of the Act the courts have looked for ‘intention’ and applied the wider timing provisions of the common law. Paragraph 4 closely corresponds to what the common law in England and elsewhere understands as 'pending' proceedings. Therefore, for the most part the provisions in para 4 are self- explanatory. But according to Borrie and Lowe195 the one area of doubt may be to determine the exact point at which a person can be said to be arrested without warrant as there is no statutory definition of 'arrest'. Blackstone has described 'arrest' as the 'apprehending or restraining of one's person in order to be forthcoming to answer an alleged or suspected crime'.196 But as Borrie and Lowe point out there is, in modern times at least, problems where people are said to be 'helping the police with their inquiries'. Because in theory as soon as a person is involuntarily detained at a police station they are under arrest and must then be charged within the statutory periods.
For journalists it can be difficult to determine the exact position of the detainee and an adverse publication at this stage could risk prejudicing an eventual trial. It was this difficulty that led the Phillimore Committee to reject an arrest as being the
193 The reference to commencement by motion for committal or attachment is to contempt proceedings. 194 Borrie and Lowe, The Law of Contempt 3rd ed, Butterworths, London 1996 at 240. 195 Borrie and Lowe, The Law of Contempt 3rd ed, Butterworths, London 1996 at 256. 196 Commentaries[1830] p 289.
75 designated starting point for contempt.197 According to Borrie and Lowe Paragraph
4 of the Act strikes a reasonable balance between the Committee's proposals, which would not have protected a trial from the real risk of prejudice that publicity prior to a charge can cause, and the undesirable uncertainties of the common law position.198
Under the common law in England the law of contempt starts when proceedings are
'pending' as in Australia but there is also authority for the view that the law starts when proceedings are said to be 'imminent'. This is on the understanding that media publicity at the imminent stage may cause just as serious a degree of prejudice to a case as publicity at the time when proceedings are pending or current.199 Furthermore some relatively recent cases suggest that contempt may apply before proceedings are
'imminent'.200 In Attorney-General v News Group Newspapers Watkins LJ accepted the argument that there was no authority which states that proceedings have to be imminent before contempt can be committed at common law:
The circumstances in which a criminal contempt at common law can be committed
are not necessarily, in my judgment, confined to those in which proceedings are
either imminent or pending…. The common law surely does not tolerate
conduct....accompanied by an intention to interfere with the course of justice by
publishing material about the person to be prosecuted which could only serve to
and was so intended to prejudice the fair trial of that person.201
197 Para 123. 198 Borrie and Lowe, The Law of Contempt 3rd ed, Butterworths, London 1996 at 258 199 See Justice Wills in R v Parke [1903] 2 KB 432 at 437: “It is possible very effectually to poison the fountain of justice before it begins to flow.” 200 A-G v News Group Newspapers Plc [1989] QB 110. 201 [1989] QB 110 at 133.
76 It must be said that this was an unusual case where the tabloid Sun newspaper helped to finance a mother’s private prosecution against a doctor whom she accused of raping her young daughter but whom the DPP refused to prosecute. The Sun ran a series of highly prejudicial articles about the doctor and his alleged conduct.
'Imminence' was again considered in a later case Attorney-General v Sport
Newspapers Ltd202 in which a paper was prosecuted for contempt for revealing, before a warrant for arrest was issued, the previous criminal convictions of a man whom the police were hunting in connection with the disappearance of a schoolgirl.
In the event the newspaper was acquitted because intention to prejudice was not proved but the Court discussed the ‘imminence’ problem. Bingham LJ took the view that the judicial observations made before the Administration of Justice Act 1960 pointed to a growing consensus that contempt could apply to proceedings which were imminent although not in existence and the draftsman intended to recognize that consensus.
I accordingly have no doubt that a publication made with the intention of prejudicing
proceedings which, although not in existence, are imminent may be contemptuous
and punishable as such if it gives rise to the required risk.203
But his brother judge, Hodgson J, took a different view arguing that before the 1981
Act there may have been authority to the effect that contempt applied to imminent proceedings but there was no decision on the point and nor had the courts ever
202 [1992] 1 All ER 503. 203 [1992] 1 All ER 503 at 515.
77 considered what ‘imminent’ meant.204 This again poses the question about the meaning of ‘imminent’. Definitions as in James v Robinson refer to the proximity of arrest but according to Borrie & Lowe it would be perhaps preferable to relate the timing to proximity of court proceedings.205 However, it is reasonably likely that once a suspect has been arrested, court proceedings usually follow fairly quickly afterwards. R v Beaverbrook Newspapers Ltd206 is a good example. A journalist was able to enter a house where a suspect was under siege and obtain an interview which was later published shortly before the suspect was arrested and charged with murder.
The Judge was critical of the newspaper for failing in the circumstances to form the opinion that proceedings were imminent.
An earlier case in point was R v Savundranayagan and Walker207 where a suspect was interviewed on television. The suspect’s subsequent arrest and conviction it was argued was prejudiced by the interview. Salmon LJ said in his judgment, 'it surely must have been obvious to everyone he (Saundranayagan) was about to be arrested and tried on charges of fraud'. The 'obviousness' test for 'imminence' was criticized by Borrie & Lowe as being a very uncertain test because 'what is obvious after the event is by no means clear beforehand'.208 A criticism echoed by the media because it does not produce a clear test for determining whether or not a publication is a contempt at the moment of publication.
204 [1992] 1 ALL ER 503 at 533. 205 Borrie and Lowe, The Law of Contempt , 3rd ed, Butterworths, London, 1996 at 244. 206 [1962] NI 15. 207 [1968] 3 All ER 339 at 441. 208 Borrie and Lowe, The Law of Contempt , 3rd ed, Butterworths, London, 1996 at 245.
78 In Attorney-General v Sport Newspapers Ltd209 Bingham LJ argued what mattered was what appeared to the contemnor at the time as being likely (emphasis added) to happen, rather than what did happen. In other words, the publisher must believe that proceedings are imminent. If the publisher does not there can be no contempt regardless of actual events. It is not hard to see how difficult this concept could be to apply. For example, would the test be an objective or subjective one? For what might be imminent in some peoples eyes may not be so obvious to others.
3.2.2 New Zealand
According to the leading authority on New Zealand media law there has always been a presumption that the Australian position, that proceedings had to be pending, applied.210 However, in Television New Zealand Ltd v Solicitor-General211 the Court of Appeal considered the application of contempt to an event where a manhunt was being conducted for a named man but no charge had yet been laid. In that case the
Solicitor-General obtained an interim injunction to prevent a television news broadcast of comments and opinions about the hunted man from friends and neighbours. Ultimately, the court overturned the injunction on the grounds that the material was not likely to prejudice a fair trial but it would have been prepared to uphold it had that not been the case. The court referred to A-G v News Group
Newspapers Ltd 212 for the reasoning that the circumstances in which criminal contempt can be committed by prejudicial publicity are not restricted to events in which proceedings are either pending or imminent.
209 [1992] 1 All ER 503 at 529. 210 Burrows J and Cheer U, News Media Law in New Zealand, 5th edn, Oxford University Press, Auckland, 2005 at 280. 211 [1989] 1NZLR 1.
79 In our opinion the law of New Zealand must recognize that in cases where the
commencement of criminal proceedings is highly likely the court has inherent
jurisdiction to prevent the risk of contempt of court by granting an injunction.213
The court did not explain the meaning of ‘highly likely’. It did insist that freedom of the press was not to be easily interfered with and that a real likelihood of serious prejudice must be shown. According to Borrie & Lowe214 this leaves New Zealand with a more far-reaching contempt law than Australia, where proceedings must be pending, or the UK where the application to anything other than active proceedings depends on the intention of the contemnor. Therefore in New Zealand media organisations tempted to engage in 'trial by media' may be taking a risk in terms of contempt even if no proceedings are actually pending. According to Burrows there has occasionally been substantial criticism of television programmes publicising police evidence before any charge has been laid.215 As was stated in Attorney-
General v Times Newspapers:
There is no magic in.... a charge being made against an accused person. Comment on
a case which is imminent may be as objectionable as comment after it has begun.216
The time gap of two days in the James v Robinson case made no real difference to the impact of the comments on potential jurors.217 Thus the media in New Zealand would be wise to treat the 'highly likely' test as the one that is current, even though it
212 Attorney-General v News Group Newspapers [1987] QB 1. 213 [1989] 1 NZLR 1 at 3. 214 Borrie and Lowe, The law of Contempt 3rd ed, Butterworths, London, 1996 at 249. 215 Burrows J and Cheer U, News Media Law in New Zealand, 5th ed, Oxford University Press, Auckland, 2005 at 282 216 [1973]All ER 54 at 65 per Lord Reid. 217 The point is raised in James v Robinson 618 per Windeyer J.
80 may be difficult to apply. What this means is that media organisations tempted to engage in 'trial by media' may be taking a substantial risk in terms of contempt laws if no proceedings are actually pending at the time. It is not an idle threat as, according to Burrows, there does appear to be a greater determination by New
Zealand courts to police this aspect of sub judice law more rigorously than has been the case in the immediate past. Although the Gisborne Herald case of 1995 was the first successful sub judice contempt case in nearly 40 years, between 1994 and 1998 there were four proceedings for contempt.218 This may be as a result of a world wide trend for media to engage in a more aggressive approach to crime reporting no doubt enhanced by the immediacy of modern technology.
3.2.3 Ireland
The Law Reform Commission of Ireland in its Consultation paper on Contempt of
Court219 is critical of the Phillimore Report recommendations which lead to the introduction of the British Contempt of Court Act 1981 as they pertain to the imminence test of sub judice contempt. The Commission poses the question: 'Why should a publication which carries a demonstrable risk (or certainty) of injury to the administration of justice in respect of specific legal proceedings not fall within the scope of the law of contempt by reason merely of historical fact that, at the time of the publication, the legal proceedings had not begun'?220 As they point out, the likelihood and gravity of the injury may in some cases be far greater than in certain cases where the legal proceedings are already in progress at the time of the publication.
218 Burrows J and Cheer U, News Media Law in New Zealand, 4th ed, Oxford University Press, Auckland, 1999 at 281. 219 The Law Reform Commission, Consultation Paper on Contempt of Court, Ch. 12, Dublin, Ireland Law Reform Commission, 1991.
81
Two counter-arguments were considered by the Law Reform Commission of Ireland.
The first was that publication before legal proceedings become imminent are not likely to cause serious interference with the administration of justice. As opposed to this the Law Reform Commission responded that while this may be true in most cases, it will not invariably be so. For those cases in which it is not so, there will be unnecessary injustice.
The second counter-argument is that a clear-cut rule is necessary for those in the media otherwise the uncertainty will chill the exercise of their constitutional rights as they relate to freedom of information. They quote the Law Reform Commission of
Canada (now defunct) that stated:
If the principle of freedom of information is to be safeguarded any exception, such
as the contempt rule, must be clearly laid down… [T]he media must have as clear
and precise a rule as possible, so that it will know the limits of its own freedoms.
Freedom of information must not be subject to an uncertain exception which might
cause more harm than the good the contempt rule is trying to promote; in other
words, in the trade off that ultimately results in these matters, the flexibility of the
contempt power must not be maintained at the expense of the right of expression.221
In its reply the Law Reform Commission of Ireland said that nothing expressly stated in the Irish Constitution and no clear analysis in any Irish judicial decision can support the suggestion that a law of contempt which extended to publications made
220 ibid 314 221 ibid 314
82 before proceedings were initiated would on that account be unconstitutional.222 This would also be the case in Australia where there is no express right to freedom of information or freedom of speech in the Constitution. The High Court has however, said there is an implied constitutional freedom to communicate on matters of government.223 The Law Reform Commission of Ireland acknowledged there were three important policies affecting the issue: the need to protect those involved in legal proceedings from prejudice through improper publications; the public interest in ensuring that the media are not unduly cramped in their coverage of public affairs and newsworthy events; and the need for a degree of certainty in the legal principles so that they can be applied with some degree of confidence in the day-to-day operation of the media.224
While strongly attracted by the argument that no liability should ever apply to prejudicial publications published before proceedings have become active, the Law
Reform Commission concluded that it would be wrong for the legislation to give a blanket immunity to publications before proceedings have become active, however serious and manifest the prejudice must have been apparent to the publisher. Their preference was for a narrow rule which would impose liability for contempt with regard to publications before proceedings are active where the publisher is actually aware of the facts which, to the publisher’s knowledge, render the publication certain, or virtually certain, to cause serious prejudice to a person whose imminent involvement in criminal or civil legal proceedings is certain or virtually certain.225
222 ibid 314. 223 Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1 reaffirmed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 224 The Law Reform Commission of Ireland, Consultation Paper on Contempt of Court, Ch. 12, Dublin, Ireland Law Reform Commission,1991 at 320. 225 ibid 321.
83 The Law Reform Commission of Ireland wished to draw a distinction between a
'normal' case of sub judice contempt which would be committed only when proceedings were active and the rare case where proceedings are not active but are imminent and where a person publishes material when he is actually aware of facts which to his knowledge render it certain, or virtually certain, to cause serious prejudice to a person whose imminent involvement in a criminal or civil legal proceedings is certain or virtually certain.226
Obviously for the offence of sub judice contempt to be committed there must be an element of mens rea with regard to criminal proceedings. The Law Reform
Commission of Ireland considered three principal approaches. These were:
1. A test based on intention of recklessness
2. A strict liability test;
3. A negligence-based test.227
There is a strong case in favour of a test based on intention or recklessness. As the
Law Reform Commission of Australia’s Report on Contempt of Court228 pointed out it is based primarily on the traditional principle of the criminal law that no one should be found guilty of a criminal offence unless he or she had a 'guilty mind'. The concept also found support in remarks made by the President of the New South
Wales Court of Appeal, Justice Kirby in Registrar, Court of Appeal v Willesee where he outlined some of the policy justifications as follows:
226 ibid. 227 ibid 322. 228 para 258 (1987).
84 In a large country divided into many jurisdictions, it is impossible to expect, and
unreasonable to demand, that newspapers, broadcasters or other alleged contemnors
should be aware of every trial, civil and criminal, being conducted throughout the
country. To impose upon them strict liability for contempt of court for any chance
utterance, either general or specific, which might prejudice the fair trial of a person
before the court would be oppressive and unreasonable. 229
This view also found favour with the Law Reform Commission of Canada where it stated strict liability offences should be limited to cases where it is absolutely necessary to protect society, not for breaching the sub judice rule.230 A strict liability test would hold a publisher liable for sub judice contempt irregardless of any thoughts the publisher may have had on the issue. One argument in favour of this approach is that publishing is a voluntary act and those who engage in publishing must realize their publications can have a detrimental effect on individuals or groups.
If a publisher publishes material that interferes with the administration of justice then it is no excuse that it was not the publisher’s intention to cause interference. On the other hand this argument does not explain why a responsible publication in which all due care was taken should render the publisher criminally responsible. A situation recognized by the ALRC where it recommended that it be a defence for any defendant who is deemed to be responsible for a publication which is in contempt to establish on the balance of probabilities that he or she had no knowledge that, for example, a trial was pending and that all reasonable care was taken to ascertain the facts.231
229 (1985) 3 NSWLR 650, 652. 230 Law Reform Commission of Canada , Working Paper 20 at 40. 231 Australian Law Reform Commission, Report on Contempt of Court 35 1987 at para 262.
85 This argument then leads on to the question of negligence. If the publisher ought to have realized that a publication would interfere with the administration of justice how then can they escape being held criminally responsible? To argue that the publisher should avoid liability because they meant no harm could be considered too lenient. The Law Reform Commission of Ireland favoured a negligence test in respect of sub judice contempt concluding that the law should impose the onus of proof on the publisher that he or she was not negligent.
Negligence, so far as a publisher is concerned, would relate, not merely to the
question whether the relevant proceedings are active, but also to whether what is
published creates a risk (other than a remote one) of serious prejudice to specific
legal proceedings. Under our proposal it would be necessary for the prosecution to
show first that the defendant published material which in fact created such a risk and
secondly that he or she did so when the relevant proceedings were active. The onus
would then shift on to the defendant to prove, on the balance of probabilities, that he
or she was not negligent in either of the two respects we have mentioned.232
It is debatable (as it has yet to become law) whether making negligence the linchpin of liability would achieve the desired result of coherence and balance for the offence of sub judice contempt that is fair to all relevant interests.
It is now more than 40 years since James v Robinson was decided and the test of
'pending' rather than 'imminent' should be re-assessed. Notwithstanding the fact that the ownership of media is concentrated in fewer hands than it was then, the current means of publication are immensely more diverse and penetrating than in 1963. For
86 example, television is more far reaching and the advent of the Internet has added another form of publication unheard of 40 years ago. Therefore, the effect of pre-trial publicity is more widespread and has the effect of reaching more potential jurors than at any other time in our history. Some support may be found in the Law Reform
Commission of Ireland's conclusion that it would be wrong to give blanket immunity to publications before proceedings have become active, however serious and manifest the prejudice must have been apparent to the publisher. There are several recent examples in Australia (referred to below) where criminal proceedings were not pending but imminent but where journalists were aware of facts which if published would render it certain, or virtually certain, to cause serious prejudice to accused. Therefore, it is the recommendation of this thesis that in regard to sub judice contempt a negligence based test should apply. This would mean journalists would be unable to publish prejudicial information with impunity until proceedings became pending but they would have to be able to justify all material written about an accused from the time he or she came under suspicion to avoid an action for contempt.
3.2.4 PROPOSALS FOR THE REFORM OF THE TIMING PROVISIONS
As part of this section there will also be discussion of statutory prohibitions that are already in force in some jurisdictions to prevent the naming of offenders and complainants in certain circumstances.
The Australian Law Reform Commission in its report on Contempt (Report 35, 1987) while not inclined to move the common law starting point earlier under a test of
‘imminence’ discussed two situations where it might impose sub judice restrictions
232 The Law Reform Commission, Consultation Paper on Contempt of Court, Ch. 12, Dublin, Ireland Law Reform Commission, 1991 at 329.
87 earlier than the common law would.233 One was (a) where a warrant for arrest has been issued, and (b) where the prejudicial publicity is accompanied by mens rea on the part of the relevant contemnor. It is the second of these scenarios that is relevant.
Referring to Commercial Bank of Australia Ltd v Preston234 The Commission put forward the scenario that if it is established against an alleged contemnor that he or she was implicated in a publication infringing the recommended restrictions and that he or she intended to prejudice any trial that might occur, it would be inappropriate to allow an exonerating factor based solely on time-limits to apply.235 Instead, the matter should be open to prosecution under s 43 of the Crimes Act 1914 (Cth) as
‘attempting to pervert the course of justice’ in the relevant trial.236 The Commission conceded that prosecutions based on this recommendation would rarely be brought and even more rarely be successful because there would have to be proof beyond reasonable doubt237
The New South Wales Law Reform Commission in its Discussion Paper Contempt by Publication came to almost the same conclusion as the ALRC when considering time limits on liability for sub judice contempt. It took the view that while it is possible that media publicity occurring at a time when proceedings are 'imminent' may cause serious prejudice to the administration of justice in any future trial, it would seem likely that the risk of such prejudice would generally be less than the risk arising from publicity at a later stage, such as the time of arrest, or some other
233 Australian Law Reform Commission, Contempt, Report No 35 (1987) para. 177. 234 Commercial Bank of Australia Ltd v Preston (1981) 2 NSWLR 554, 564-5. 235 Australian Law Reform Commission, Contempt, Report No 35 (1987) para 178. 236 para 183-4. 237 Australian Law Reform Commission, Contempt, Report No 35 (1987) para 178.
88 time closer to the trial.238 In its final report the Commission did note one exception to their recommendation.239 This was the situation of a publication which might influence the conduct of a prospective litigant.240
The Law Reform Commission of Western Australia is critical of the NSWLRC position. In its Discussion Paper on Contempt by Publication it questions the likely time lapse between the commencement of the 'pending' period and the commencement of the trial.241 The Commission makes the point that the later one fixes the commencement of the 'pending' period, the closer it will be to the trial and therefore the greater will be the likelihood of an impact on the jury. Also relevant, the Commission says, is the extent to which the case has captured public attention. It cites the case of the hunt for the man responsible for the disappearance of British traveller, Peter Falconio. Mr Falconio and his partner Joanne Lees have become household names throughout Australia since they were terrorised, and Mr Falconio abducted and probably murdered in the Northern Territory.
A man, Bradley Murdoch, was identified as the prime suspect some months afterwards and was depicted in the media as a highly dangerous person with a number of convictions for sexual assault and violent crimes. His arrest was even more sensational taking place outside an Adelaide courtroom in which he had just been acquitted of sexual assault on a 12-year-old girl. It could be argued that even years from now the fact that that Murdoch has prior convictions similar to the ones
238 New South Wales Law Reform Commission, Contempt by Publication, Discussion Paper 43 (2000) para. 235. 239 New South Wales Law Reform Commission, Contempt by Publication, Report 100 (2003) 240 Ibid, at 157. 241 Law Reform Commission of Western Australia, Contempt by Publication, Discussion Paper, Project No 93 (11) (2002) at 47.
89 he is now being tried on would remain in a potential juror's mind. Yet under the New
South Wales Law Reform Commission's proposal, it would not be contempt to publish details of the prior conviction when he had not yet been arrested. The New
South Wales Law Reform Commission acknowledges the potential prejudice in
'sensational cases' even when proceedings are 'imminent' but not yet 'pending', but dismisses this difficulty with the observation that 'it seems unlikely that the risk of such prejudice would generally be less than the risk arising from publicity at a later stage'.242 The Law Reform Commission of Western Australia says this observation does not really address the difficulty; all it says is that there is an even greater difficulty at a later stage.243 For example, in the Falconio case noted above it is hard to imagine any greater risk of prejudice than the one raised at the time police identify a suspect. The issue is whether there is a great enough risk at the time of publication, in view of the other circumstances surrounding the publication.
The New South Wales Law Reform Commission goes on to refer to the potential uncertainty problem for the media of a more inclusive definition for the time period, and suggests that this 'would arguably impose too severe a restriction on freedom of discussion'.244 According to the Western Australian Law Reform Commission while this may be so it could also be argued that the kind of arbitrary cut-off points involved in the proposal provide certainty at a cost even to the media.245 For example, a publication after arrest would count as contemptuous even if it were
242 New South Wales Law Reform Commission, Contempt by Publication, Discussion Paper 43 (2000) at 230. 243 Law Reform Commission of Western Australia, Contempt by Publication, Discussion Paper, Project No 93 (11) (2002) at 47. 244 New South Wales Law Reform Commission, Contempt by Publication, Discussion Paper, 43 (2000) at 236. 245 Law Reform Commission of Western Australia, Contempt by Publication, Discussion Paper, Project No 93 (11) (2002) at 48.
90 given very little prominence and for some reason there was certainty that it would be some time before the trial.
The Western Australian Law Reform Commission also makes the point that while there is much to be said for certainty and clarity in the law, there is also something to be said for providing the right balance between certainty and flexibility through other aspects of the offence. For example, the tendency/risk issue and the mental element and leaving the onus on publishers to assess the risk of prejudice from a particular kind of publication at a particular time, weighing the elements mentioned above, namely:
• The degree of public attention being paid to the case;
• The prominence given, or proposed to be given, to the publication;
• The degree of inflammatoriness of the facts that make the publication
prejudicial; and
• Any grounds there are for thinking a trial might come on quickly or take
some time.246
An example of 'inflammatoriness' of the facts arose from the identification of the then suspect of the Port Arthur massacre, Martin Bryant. Bryant was charged on
April 30, 1996 with one count of murder arising from the events at Port Arthur on
April 28, 1996. That day the first picture of Martin Bryant was splashed across most front pages of newspapers around the country including a digitally 'enhanced' photo by The Australian. The effect of the enhancement emphasised the whiteness of
Bryant's eyes giving him a 'spaced out' or 'mad' look that seemed to fit the media
91 image of the suspect.247 Five days later the Tasmanian Director of Public
Prosecutions Damian Bugg QC announced his intention to bring proceedings for sub judice contempt against The Australian as well as a number of other media outlets for their coverage following the charging of Bryant.248 However, the charges were never followed through, perhaps because identification was not an issue, and the fact that Bryant subsequently pleaded guilty and never went to trial.
It should not be too much to ask of a skilled and responsible editor or journalist to make the assessments suggested by the Law Reform Commission of Western
Australia. Any remaining problem of a 'chilling' effect could be addressed through the construction of defences, especially relating to public interest. Certainly there is an attraction to a strictly defined sub judice period when so much of the law remains vague and unsatisfactory. But there is a real risk of a shift of the balance too far away from the interests of accused persons in obtaining a fair trial, once those matters are addressed, if an arbitrary sub judice period is introduced as well.
Alternatively, as noted above, there is scope for an arbitrarily-defined period to be over-inclusive and thereby favour the interests of the accused at the expense of freedom of discussion.
The matter of identifying a person being investigated, but not yet charged, was discussed during the Crime and Misconduct Commission's Inquiry into how sexual offences are handled by the Queensland criminal justice system. The Inquiry was
246 Western Australia Law Reform Commission, Contempt by Publication, Discussion Paper, Project No 93 (11) (2002) at p.48. 247 Martin Hirst & Roger Patching, Journalism Ethics: Arguments and Cases, Oxford University Press, South Melbourne, Victoria 2004 at 284. 248 Ackland R, 'Silly old bugger', (2001) Gazette of Law and Journalism
92 established to assess the adequacy of the Queensland criminal justice system's response to allegations of sexual abuse.249 One of its terms of reference was the appropriateness of, and the circumstances in which, the publication of identifying information about a person charged with a sexual offence should be suppressed.
Section 10(3) (b) of Queensland's Criminal Law (Sexual Offences) Act prohibits a person from making or publishing a statement or representation of a report (other than a report about the defendant's committal hearing)250 that reveals the name, address, school or place of employment of a defendant charged with a 'prescribed sexual offence' before the defendant is committed for trial or sentence.
The Commission, in its discussion paper, acknowledged there are opposing views about the publication of information identifying the accused.251 One viewpoint is that sexual offences should be treated differently to other offences. It is argued that the privacy of the defendant should be maintained, especially given the social, personal, and financial consequences associated with sexual offence allegations. There may be a lengthy period of time between the committal and the trial, in which the accused's identity might be publicised, and the presumption of innocence does little to protect an accused when the circumstances involve sexual offence allegations. A high level of media and public interest in these types of cases exists, and openness and publicity should be limited so as not to inflame pre-trial prejudice to the accused. The alternative view holds that because of the highly personal nature of sexual abuse, victims rarely disclose their experiences and offenders often remain undetected for a
249 Crime and Misconduct Commission, Seeking Justice; An Inquiry into how sexual offences are handled by the Queensland criminal justice system, (2003) Report Summary, p.1. 250 The prohibition on publishing the name of a defendant in a report about the defendant's committal hearing is set out in s.7 of the Criminal Law (Sexual Offences) Act 1978 (Qld.) 251 Research and Prevention Crime and Misconduct Commission, The handling of sexual offence matters by the criminal justice system, Discussion paper, October 2002, at.5.
93 long time, if not forever. Victims might be more likely to come forward to report their experiences if they become aware that the same or similar offence that was perpetrated against them might have been perpetrated by the same offender against others.
Public safety and harm minimisation issues have also been raised as critical points in support of disclosing information about the accused. This argument holds that persons in close proximity to the accused, such as neighbours, children, students or work colleagues, might be better able to take appropriate steps to minimise the risks of the offence occurring again during the lengthy time that it takes for cases to go to trial, if they are aware of who has been alleged to be a sexual offender. In her submission to the Crime and Misconduct Inquiry the Queensland Director of Public
Prosecutions Leanne Clare said there was no rational basis for distinguishing sexual offences from any other type of offence, beyond the need to protect complainants. If the concern was the possible trespass into the presumption of innocence, then it must be applicable to all offences and for all purposes up to the verdict of the jury.252 She submitted a blanket suppression on the identification of offenders prior to conviction did have some attraction for the Crown.253 This was because it could be expected to diminish defence complaints about an unfair trial, because of pre-trial publicity. On the other hand, she said, there had been previous cases where the disclosure of an accused's details, had prompted further witnesses to come forward. In the investigative stage, police also needed to publicise photographs or other details that
252 Submission by the Director of Public Prosecutions, Crime and Misconduct Commission Inquiry, The handling of Sexual Offence Matters by the Criminal Justice System, November 2002, at 15. 253 Ibid 16.
94 might lead to the apprehension of a suspect.254 Similar submissions on this point were made by the QPS255 and the Queensland Police Union of Employees.256
However, the Legal Aid submission recommended that identifying information not be published until the start of the trial.257 In relation to the view that publication of the identity of a person charged with a sexual offence might bring more complainants to light, Legal Aid said there were other investigative means by which the police might uncover other complaints. For example, it was not uncommon for police to make inquiries of all members of a particular class at a school once one child comes forward with an allegation of sexual abuse by their teacher.258 As noted in the report's terms of reference Legal Aid said it was often the trial of the offender which encouraged other complainants to come forward.259 The opportunity to expose other offences would not be lost if publicity was suppressed before the trial. Ms Clare pointed out there are no restrictions on reporting the details of persons under investigation or charged with any other type of offence, unless the offender is a juvenile. Therefore it was difficult to see how the prejudice occasioned by the identification of a person charged with murder could be less than that induced by the naming of a person charged with sexual assault.260
254 Ibid. 255 QPS submission, Crime and Misconduct Commission Inquiry, The handling of Sexual Offence Matters by the Criminal Justice System, November 2002,at.35. 256 QPUE submission, Crime and Misconduct Commission Inquiry, The handling of Sexual Offence Matters by the Criminal Justice System, November 2002, at12 257 Legal Aid submission, Crime and Misconduct Commission Inquiry, The handling of Sexual Offence Matters by the Criminal Justice System, November 2002, at .9. 258 Ibid. 259 Ibid 10. 260 Submission by the Director of Public Prosecutions, Crime and Misconduct Commission Inquiry, Inquiry into the handling of Sexual Offence Matters by the Criminal Justice System, November 2002, at .17.
95 A similar submission was made by the Queensland University of Technology's
Faculty of Law who said there was little reason to argue that alleged sexual offenders should be offered protection from damage to their reputation that is not provided to other alleged offenders.261 They submitted that if the Commission was not minded to recommend that the prohibition on naming be extended to all offences, it should recommend that it be abolished entirely.262 A strong point for equity between the accused and the accuser was put by the President of the Queensland Council for Civil
Liberties, Terry O'Gorman. He told the Commission hearings that there was something fundamentally wrong with a system that gives a complainant anonymity pre-charge as well as anonymity throughout the whole proceedings even if the charge turns out to be false while the accused is able to be named by the media right up until the point of being charged.263 Interestingly, in its submissions to the Crime and
Misconduct Commission Inquiry the Queensland Police Service suggested that the naming of a suspect before charging can also have a detrimental effect on the police investigation.264 They agreed that the current 'gap' in the Criminal Law (Sexual
Offences) Act 1978 (Qld.) that allows for publication of a person's name before being charged should be removed.
The Queensland Police Service Media Guidelines presently allow 'photographs, copies of video footage, or likenesses of escapees or people sought for interview to be issued to the media only after all other avenues of inquiry have been exhausted, or
261 Submission of Michael Barnes, Sally Kift and Tamara Walsh, Faculty of Law QUT, Crime and Misconduct Commission Inquiry, Inquiry into the handling of Sexual Offence matters by the Criminal Justice System, November 2002, at 12. 262 Ibid 13. 263 Transcript of proceedings Day 2, Crime and Misconduct Commission, Inquiry into the handling of Sexual Offence matters by the Criminal Justice System, 21 November 2002 at 89. 264 Crime and Misconduct Commission, Inquiry into the handling of Sexual Offence matters by the Criminal Justice System, 2002 at 19.
96 to warn of danger'.265 Before releasing images and associated details of suspects or persons absconding from lawful custody to the media, police officers must obtain the authority of a commissioned officer.266 The Crime and Misconduct Commission in its report of June 2003 recommended that section 10(3) (b) of the Criminal Law
(Sexual Offences) Act 1978 (Qld.) should be amended to prohibit the naming of a person who is under investigation by the police prior to being charged. This extension to the existing prohibition would, the Crime and Misconduct Commission said, ensure the Act protected the identity of a defendant from 'premature publication'.267 The Crime and Misconduct Commission did however, insert a proviso in its recommendation 'that identifying information about a suspect can be released if it is necessary to ensure the safety of a person or the community and/or to help locate the suspect or the complainant or otherwise assist the investigation'.268 It will be interesting to see how this proviso is interpreted if the recommendation is ever enacted into law. The Crime and Misconduct Commission has proposed to review the implementation of its recommendations by the key players in the criminal justice system.
In conclusion it is worth noting that the very existence of the Criminal Law (Sexual
Offenders) Act is proof that statutory prohibitions concerning the naming of offenders and complainants can be successfully enforced. This adds weight to my thesis that there should be a statutory prohibition on the naming of a suspect before they have been charged.
265 Queensland Police Service, Media Guidelines for Employees of the Queensland Police Service, unpublished, at para.10.1. 266 Ibid at para. 1.10.12. 267 Protection of the identity of a defendant from premature publication was one of the stated aims of the legislation Queensland, Parliamentary Debates, Legislative Assembly 1978, p. 1190. 268 Recommendation 21, Crime and Misconduct Commission report summary, Inquiry into how Sexual Offences are handled by the Queensland Criminal Justice System, June 2003, at 6.
97 4. INJUSTICE OF SUSPECT IDENTIFIED BUT NOT CHARGED
This chapter will look at the inherent injustice of naming a suspect before he or she has been charged. I will detail a number of cases where this has occurred and the obstacle this has placed in the way of the accused receiving a fair trial.
In the Queensland case R v Long269 a suspect was not only identified in a newspaper but his alleged former criminal acts were also published. Robert Paul Long was eventually charged with murder and arson. The charges arose out of a fire that destroyed the Palace backpackers' hostel in Childers on 23 June 2000. As a result of the fire 15 residents of the hostel perished. As the majority of the deceased were from overseas the event attracted massive publicity throughout the world and in
Australia. Two days after the fire, Queensland's only metropolitan daily newspaper
The Courier-Mail was reporting that the police were searching for Long. He was eventually apprehended on 28 June 2000. For the five days between the fire and his apprehension Long was subjected to systematic denigration with headlines such as
'Wanted drifter may have record for attempted arson', 'Fugitive has violent past' and
'De facto’s life of fear'. The tenor of the prejudicial publicity in the articles and on television news reports during the period is illustrated from the front page of The
Courier-Mail of 26 June 2000:
A foot chase down Childers' main street over unpaid rent may have precipitated the
torching of a hostel that killed 15 young backpackers. Robert Paul Long, a 37-year-
old itinerant fruit picker is Australia’s most wanted man, sought by police in
connection with last Friday’s horror blaze in the town south of Bundaberg. Two days
98 before the fatal fire, hostel operators Christian Atkinson and John Dobe, both 28,
pursued Long on foot down the Bruce Highway after challenging him to pay
outstanding rent of about $200. Long is also believed to have threatened the pair. It
also emerged yesterday that Long had an extensive criminal history of violence,
including convictions and charges for the attempted murder of a former de facto’s
six-year-old daughter, serious assault, assault occasioning bodily harm, burglary, and
fraud. He is also alleged to have torched a caravan while his de facto was asleep
inside.270
The same edition of The Courier-Mail carried another report under the headline
'Wanted drifter may have record for attempted arson and attempted murder.'271 The report was not only prejudicial but inaccurate because Long’s criminal history, as tendered in court, did not disclose any conviction for attempted murder. The same
article also records the comment of a former neighbour that, 'I’m not surprised at
what happened'. On 27 June, 2000 the lead article on the front page of the Courier
Mail carried the headline 'De facto’s life of fear' and contained an interview with a
woman claiming to be the applicant’s former de facto which alleged, among other
claims, that Long was a sadist, arsonist and a person incapable of remorse.272
269 (2002) QSC 054. 270 'Australia's Most Wanted', The Courier-Mail, 26 June 2000, at 1. 271 Paula Doneman and Rory Callinan, 'Wanted drifter may have record for attempted arson', The Courier-Mail, 26 June, 2000 at 5. 272 'The former de facto wife of Australia’s most wanted man yesterday told of a sadist who had tried to murder her and her children. Christine Campbell said her estranged partner Robert Paul Long, the man police are seeking over the Childers hostel inferno had torched a caravan in which she was sleeping with their five-year-old daughter and her two young daughters from a previous relationship. He had then silently watched. Ms Campbell who claimed Long had attempted to strangle her and her children, said she had no doubt he was capable of torching the Childers Palace Backpackers' Hostel and that he would feel no remorse'.
99 Even worse prejudicial material was published in regional and interstate newspapers but because the trial venue was shifted to Brisbane it meant only the Brisbane material had any real relevance. That was because the pool from which any jury was to be drawn would have been from people giving a Brisbane address on the electoral roll. The likelihood of potential Brisbane jurors reading articles in regional and interstate newspapers would appear to be low if circulation figures are any guide.
Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law.273 The principle being that the wrongful reception of such evidence by a jury puts the prospect of a fair trial at risk. Although in Long’s case no charges had been laid and obviously no jury had been empanelled, the danger was the disclosure of information of such a prejudicial nature could taint potential jurors and deprive the accused of a fair trial. It was this material that counsel for Long relied on during an application made on 13 February 2002, some 20 months after the crime, to stay the indictment for murder and arson permanently. It was their submission that although the disclosures and allegations were confined to a period of a few days between 24
June and 29 June 2000 the context in which they were published, in the heat of passion following a major human disaster, made it more likely they would be read and absorbed by potential jurors.274 In refusing the application Dutney J275 referred to the remarks of Pincus JA in R v Lewis276 where, after referring to Murphy v R277, he added:
273 Maxwell v The Director of Public Prosecutions [1935] 309 AC 317 274 Long v R (2002) QSC 054 (Unreported, Dutney J, 18 February 2002) 5 275 Long v R (2002) QSC 054 (Unreported Dutney J, 18 February 2002) 6 276 [1992]1 Qd R 613 at 636 277 (1989) 167 CLR 94
100 The High Court’s remarks support the view that, at least in some circumstances, an
accused must be content with a trial in which the court does the best it can for him
by way of directions, without producing any certainty that preconceptions derived
from media treatment of the facts of the case will be utterly dispelled by the time the
jury comes to consider its verdict.
However, Long’s case was distinguishable from Lewis where the crime, although serious, did not invoke revulsion or horror. Long also differed from Murphy in that, while the crime Murphy was convicted of was horrendous278, the particular adverse reporting complained of did not relate to the specific appellants but to their co- accused. The nature of the accusation, that Michael Murphy was an escaped prisoner, fell far short of what was said of Long. Furthermore, Long’s counsel submitted their case was worse because the source of some at least of the allegations of prior criminal conduct against their client was prison staff or police officers. It was their submission these officials must have known the purpose for which the information being released would be used and the Crown should thus be held responsible for deliberate dissemination of the information. However, Dutney J was not impressed by this line of argument claiming there was no support for a finding that the leaking of information about the applicant from within government sources was sufficiently condoned or authorized by those in authority. His Honour referred to a passage from the judgment of Brennan J in Murphy at 122:
There is a legitimate public interest in knowing of the solving of serious crime as
well as a legitimate public interest in having the trial of alleged criminals conducted
278 The killing of a young woman, Anita Cobby, in brutal circumstances. She was seized on a suburban Sydney Street on 2 February 1986 and was dragged into a car containing five men. She was
101 free from prejudice. There may be a tension between the two interests of the public
which has to be resolved. 279
This reasoning appealed to Dutney J who ruled that in Long’s case there was strong public interest in having the trial proceed. While acknowledging that there was the possibility of prejudice to the applicant by what had happened in the media, His
Honour said he was not satisfied that with the lapse of time and proper directions to the jury that the risk was so great as to amount to a 'significant and unacceptable likelihood that the trial would be vitiated by impermissible prejudice and prejudgment'.280 The lapse of time, referred to by Dutney J, is often referred to as an antidote to prejudicial publicity. However, the English courts have justified the inclusion of imminent proceedings within the sub judice period on the basis that media publicity at that stage may cause just as serious a degree of prejudice to a case as publicity at the time when proceedings are pending.281 It is often the case the most sensational publicity is at the time before charges are laid or an arrest warrant issued.
At this stage the media, which are in fierce competition with one another, are keen to
'scoop' their opposition especially when they are in possession of information their rivals do not possess. The naming of Long, as well as his alleged confessions and prior convictions, shortly after the crime when passions were high was more likely to be imprinted in a potential juror’s mind than when he was eventually charged and the prejudicial material was not able to be reported because of contempt restrictions.
sexually assaulted in the car and was later the subject of a series of sexual assaults after she had been dragged through a barbed wire fence, and into a paddock. Her throat was cut. 279 Murphy v R (1989) 167 CLR 122 280 R v Glennon (1992) 173 CLR 623, 624 281 R v Parke [1903] 2 KB 432 at 437.
102 Counsel also raised the possibility in his application for a permanent stay that jurors may have gained access to a BBC Internet site containing prejudicial publicity before
Long had been charged. This information was on the website as at 29 June 2000, when Long was regarded both as a witness and a suspect but was yet to be interviewed and had not been arrested. Curiously, in his judgment the trial judge made no reference to the above submission that jurors might discover this prejudicial and inadmissible information through Internet access. While acknowledging this omission the Court of Appeal said the defendant had to show more than that there was a mere possibility that one or more jurors had access to the Internet information.282 Furthermore the Court said the trial judge had given the jury specific instructions about acting only on the evidence both at he start of the trial and at the beginning and end of his summing up.283 It is of interest that since the trial the
Queensland Parliament has recognised the danger of Internet access by jurors through the Criminal Law Amendment Act 2002 by inserting s69A into the Jury Act
1995 (Qld) which prohibits a person who has been sworn as a juror in a criminal trial from inquiring about the defendant in the trial until the jury has given its verdict or the person has been discharged by the judge. Similar legislation has been introduced in NSW284 following R v K (2003) 59 NSWLR 431 where a number of jurors found, via the Internet, that a defendant accused of murdering his first wife had previously been tried for the murder of his second wife. An appeal was allowed and a new trial ordered.
282 R v Long, Robert Paul Ex Parte Attorney-General of Queensland, (2003) QCA 77 Jerrard JA, para 170. 283 Para 171. 284 Jury Act 1977 (NSW) s 68C.
103 Another example of prejudicial pre-charge publicity involved a former Queensland
Member of Parliament, Bill D’Arcy. D’Arcy was named in the media as being under investigation over child sex allegations before he had been charged and even before police had interviewed him.285 He was initially named on an Internet website then a metropolitan newspaper with most other media following suit. Not surprisingly the media’s actions were swiftly denounced by D’Arcy’s lawyer who accused journalists of 'trashing' his client’s presumption of innocence.286The media responsible for the publication pointed out they had not broken any law in naming the MP and were in fact advancing 'the interests of the public'.287
Of course a suspect named by the news media as being under investigation does have the civil remedy of defamation available should the matter not go any further or, if in the event of being charged, the charges are later dropped. This may not however, restore the person’s reputation. In D’Arcy’s case he was subsequently charged and tried in the Queensland Supreme Court where he was convicted of 11 counts of indecently dealing with a girl under 12 years of age, four counts of indecently dealing with a boy under 14 years and three counts of rape.
Before the trial an application under s 47 of the Queensland Jury Act 1995 to put in place the special procedure for challenge for cause was put by defence counsel.288
The main thrust of the application was the defendant had suffered grievously from prejudicial publicity in the media both before and after he was charged. Counsel submitted four questions regarding the nature of the prejudicial publicity be put to
285 ‘MP will not quit over sex claims’, The Courier-Mail, 4 September 1998, at p. 1. 286 Terry O'Gorman ‘The issue of naming rights’, The Courier- Mail, 5 September 1998, 27. 287 Chris Mitchell, ‘Media’s reply should be aired’, The Courier-Mail 5 September 1998 at.27. 288 R v D’Arcy (Unreported, Supreme Court of Queensland, Douglas J, 17 October 2000) 425.
104 the jury to determine whether the jurors could carry out their duties impartially. It was significant the Crown did not oppose the application.
Nevertheless Douglas J rejected the application, arguing that to raise the prejudicial matters before the jury would only serve to remind them of the fact that these criticisms of Mr Darcy had been made in the press, so as to make their position even more difficult as to what their view would be. The Judge said he was satisfied the traditional warning to the jury a judge makes in a criminal trial, that they must act on the evidence before them and nothing else, would be sufficient to overcome any danger of jurors being influenced by any matters alleged against D’Arcy outside the
Courtroom.289 This point was taken on appeal where it was argued the trial judge erred in refusing the s47 application thereby depriving the appellant of a fair trial.290
In rejecting this ground of appeal McMurdo P said the primary judge’s decision was within his discretion and there was no reason to think that the jury did not conscientiously follow the trial judge’s directions in disregarding any matters not in evidence before the court.291 Brother Judge Chesterman J appeared to echo the thoughts of some judges when he stated that the appellant’s arguments exaggerated the influence of the tabloid media.
The public is well aware that its (tabloid media) function is to generate income for
its proprietors and that the dissemination of information and expression of opinion
by it is secondary to that purpose. Information published by that media is often
inaccurate and is frequently distorted by the need to create sensation. The distortion
is sometimes deliberate. Journalistic opinion tends to be populist rather than
289 R v D’Arcy (Unreported, Supreme Court of Queensland, Douglas J, 17 October 2000) 425. 290 R v D’Arcy (2001) QCA 325. 291 R v D’Arcy (2001) QCA 325.
105 responsible and is often the product of ignorance or prejudice. Contrary opinions are
suppressed. The community, from which jurors are selected, has a good appreciation
of these matters.292
But if this were the case that the media has no influence with the public, why then have sub judice laws at all? There would be no reason to protect the public if they gave no credence to reports in the media. On the other hand Chesterman J’s cynical view of the tabloid media is not universally shared by the judiciary in general. For instance, in Ballina Shire Council v Ringland, Justice Mahoney described the power of the media thus:
The media exercises power, because and to the extent that, by what it publishes, it
can cause or influence public power to be exercised in a particular way. And…it
needs no authority to say what it wishes to say or to influence the exercise of public
power by those who exercise it. The media may, by the exercise of this power,
influence what is done by others for a purpose which is good or bad. It may do so to
achieve a public good or its private interest. It is, in this sense, the last significant
area of arbitrary public power.293
So the judiciary cannot have it both ways. Either the media is so poorly regarded by the public that it has no credence whatsoever or it is a powerful player in the formation of public opinion. Confirmation of the media's power in influencing public opinion was acknowledged in the unsuccessful private prosecution of Queensland swimming coach Scott Volkers by a woman who claimed to have been indecently
292 R v D’Arcy (2001) QCA 325. 293 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 725 quoted in D.Butler and S. Rodrick, Australian Media Law,Lawbook Co, Sydney, 1999 at 1.
106 assaulted by him when she was a young swimmer in his squad.294 In refusing leave to allow the private prosecution Holmes J said the factor which convinced her that leave should not be granted was the publicity granted to the case and the way in which it was presented. 295 The publicity included remarks on radio and television by the defendant's solicitor asserting his client's innocence by reference to evidence in the case, a story largely sympathetic to the complainant on the popular ABC program
Australian Story296 and an extensive ABC Four Corners297 report mainly focussing on the Queensland DPP's original decision not to prosecute the accused. According to Holmes J, the positioning in the media of the applicant and the respondent as protagonists would mitigate against the trial being conducted 'without the distracting winds of personal indignation or outrage'.298
Anecdotally, there is plenty of other evidence to suggest the media is instrumental in helping shape public opinion. For instance, the televised debates between Senator
John Kennedy and Vice-President Richard Nixon in the 1960 United States presidential election campaign had a significant on the outcome of the election.299
Television footage and newspaper photos of the Vietnam War is often credited with fermenting public opposition against that conflict which subsequently led to the withdrawal of ANZUS troops. The extensive coverage of the current Iraqi war is also having a profound impact on audiences in Australia with opinions polls (as at 2004 at the time of writing) against the government’s involvement in maintaining troops
294 Gilbert v Volkers (2004) QSC 436. 295 Gilbert v Volkers (2004) QSC 436 at para. 45. 296 Australian Story, ABC TV, 8pm 10 February 2003. 297 Four Corners, ABC TV, 8:30pm 5 July 2004. 298 Gilbert v Volkers (2004) QSC 46 at para. 47. 299 Arthur Schlesinger, 'Kennedy' in Lord Longford & Sir John Wheeler-Bennett (eds), The History Makers (1973) 417.
107 there.300 It is also doubtful that anyone with a television set will ever forget the images of a passenger jet smashing into the second tower of the World Trade Centre.
Therefore it seems the greater the event, the greater the memory.
This scenario would seem to fit the reportage of the above Long and D’Arcy cases. In
D’Arcy’s case the Courier-Mail had exclusive information as to the identity of the then suspect and, according to D'Arcy's solicitor, chose to reveal it in the interests of scooping its opposition.301 Such allegations could lead to a public perception that the media in this case were motivated by other interests in publishing D'Arcy's name and arguably come within the reckless indifference test. Publication would be even more prejudicial to D'Arcy as a serving MP with a widely reported nick-name as 'The
Phantom', a nom-de-plume that referred to his frequent absences from his electorate on reported 'overseas junkets'. Research is available that suggests jurors more readily recall pre-trial publicity of accused people who are independently well known.302 In the case of Long, the media’s reportage was even more damaging in that allegations were made in the pre sub judice period that the accused had one or more prior criminal convictions. It was made even more apparent that Long would eventually be charged with the crime he was accused of.
The absence of contempt charges being preferred by the Queensland Attorney-
General for the Long and D'Arcy matters could lead to the suggestion that the media has been emboldened into pushing the limits of the law in relation to sensational
300 'Poll shows support waning for Iraq war' ,ABC News Online , 22 May 2004,
108 crimes. Certainly at least one leading Victorian criminal lawyer has described the recent pre-trial publicity phenomena as a manifestation of the media 'extending their territory.' 303 For example, in the recent case of a suspect in a notorious Brisbane triple murder the prejudicial material exceeded even that endured by Long and
D'Arcy. To take one example, The Courier-Mail devoted six columns to an analysis of the suspect, Mr Max Sica’s website.304 The article claimed Mr Sica, who has yet to be charged, listed 'cars, girls and death' on his website and that they also revealed his personal dislikes including 'liars and unfaithful people'. A photo of his website was also published.305 Also included in the article was a full record of his previous convictions and the details of the illegal activities he was alleged to have been involved in that led to his convictions plus the fact that he had served a nine-year sentence for arson.306 Should Mr Sica be charged it would not be difficult to imagine that at least one jury member drawn from the Brisbane area or anywhere in
Queensland would have read or heard this material. This would make the change of venue remedy worthless. It would be even more difficult to imagine a jury member, despite judicial instructions to the contrary, being able to erase those memories of Mr
Sica’s reported character when they came to adjudicate his case. Also given the sheer volume of prejudicial material it may mean a voir dire would be of limited value.
There would also be the cost and delay to any trial should Mr Sica be put before a jury.
303 Colin Lovitt QC, comment as chairperson 'The Media & Criminal Law, LAWASIAdownunder2005, Gold Coast Convention Centre, Wednesday, 23 March, 2005. 304 ‘Triple murder suspect’s personal interests: Cars, girls and death’, The Courier-Mail, 10 April 2004, 3. 305 Ibid. 0306 Ibid.
109 For example, as in the other notorious cases listed above, defence counsel would inevitably raise the issue of their client not being able to obtain a fair trial. The time and preparation and waste of court time involved in hearing this application if, as would seem likely, the case followed the pattern laid down in Long’s case, would be necessarily exorbitant. Also, judging by past applications in the cases noted above they would ultimately prove futile unless a Court of Appeal decided this was the truly exceptional prejudicial pre-trial publicity case that would necessitate a permanent stay of proceedings. Therefore it would seem likely that unless an example is made of the media in cases like this we can look forward to further displays of blatant prejudicial behaviour at the expense of a fair trial.
To be fair, in recent months the Queensland Attorney-General has moved to prosecute The Courier-Mail for contempt in relation to a series of articles concerning an habitual petty thief. The paper illustrated the articles with a photographic reproduction of security footage clearly identifying the felon picking the pocket of an elderly woman in a supermarket.307 The paper has since proved unrepentant by editorialising against the Attorney-General and justifying its reportage.308 It was also successful in defeating a Supreme Court action by the Attorney-General to prevent the paper from revealing he had started action against them for contempt.309
Nevertheless it does seem curious the Attorney-General has seen fit to issue contempt proceedings involving prejudice to a petty criminal but similar prejudice to a person accused of a mass murder (Long), and a prominent politician accused of serious sexual offences (D'Arcy) have gone unpunished.
307 Paula Doneman, 'Meanest thief in town preys on 92-year-old grandmother', The Courier-Mail, 11 February 2004, 1. 308 'System has failed the victims', The Courier-Mail, Wednesday, March 23, 2005, 1. 309 'Judge rules against Attorney-General', The Courier-Mail, Thursday, May 6, 2004, 3.
110
4.1 THE ATTORNEYS’–GENERAL ROLE IN ISSUING CONTEMPT PROCEEDINGS
It is worth noting the responsibility for contempt proceedings has traditionally been the province of the Attorney-General. This is notwithstanding the fact that it is possible in Queensland for contempt prosecutions to be instituted by persons other than the Attorney-General. For example, the Crime and Misconduct Commission can have contempt proceedings referred to the Supreme Court. It is also open to any individual to bring a private prosecution for contempt, although such proceedings have been rare. In general, however, alleged contempts are referred to the Attorney-
General by the courts or law enforcement bodies for a decision as to whether a prosecution should be instituted. The role of the Attorney-General is to act in the public interest to ensure the fair administration of justice. The role was accurately described by UK Attorney-General, Lord Goldsmith, during a keynote address to the
'Law for Journalists Conference' in London recently.310 He told the conference that when he acts in the public interest he was not taking a Government decision nor acting for it although he remained accountable to Parliament for the exercise of these functions. Significantly, he said:
Nothing could be more damaging to public confidence in the administration of
justice than a suspicion that my powers in relation to it were exercised on political
grounds. So what I do in this field is entirely a matter for me in the exercise of my
public interest responsibilities. I do not discuss with ministerial colleagues whether a
310 Lord Goldsmith, "Keynote address”, Paper presented at the Law for Journalists Conference, 28 November (2003)
111 particular publication causes concern; nor whether to take any, and if so, what
action. 311
However, it is entirely understandable that any attorney-general, as a politician and member of the government, would be concerned about the appearance of impartiality in deciding whether a prosecution should be initiated against influential media organisations, prominent individuals or, on occasions, other politicians from his or her own party or from opposition parties. This was a situation recognised by NSW
Solicitor-General, Michael Sexton in an article written following a recent decision by the Independent Commission Against Corruption not to refer allegedly contemptuous statements by the NSW Premier, Bob Carr to the NSW Supreme Court.312
Nevertheless, Mr Sexton disagreed with the proposition that the way to remedy this apparent conflict was for the DPP to take over responsibility for contempt prosecutions from the attorney-general. He argued because the DPP was one of the two parties to most criminal cases it was likely to give greater weight to the isolation of the trial process than to the discussion of public issues arising out of major criminal cases. In his view the attorney-general was better placed to take a 'broader view' in striking a balance between the competing interests of the administration of justice and the discussion of public issues arising out of major criminal cases.313
Many would respectfully disagree with the Solicitor-General. It is difficult to believe a politically appointed attorney-general, with the best will in the world, could make a decision entirely divorced from political considerations; this is particularly the case in major criminal prosecutions which often involve prominent individuals like
311 Ibid, p.3. 312 Michael Sexton, 'Contempt is best served with discretion', The Australian Financial Review, 24 September, 2004, at 59. 313 Ibid.
112 disgraced former, Queensland Labor MP, Bill D'Arcy. On the other hand there does not appear to be any evidence that the DPP would be anything less than even-handed in its approach to issuing contempt proceedings and it would be less likely to be influenced or distracted by political considerations. This discussion of political machinations in relation to sub judice contempt serves to illustrate the difficulties involved in persuading legislators to change the law concerning the identification of suspects before they are charged.
4.2 POLICE/MEDIA CO-OPERATION: AN UNHOLY ALLIANCE
Another reason for not identifying suspects before being charged is to prevent the insidious technique which police use in building pressure on a suspect to make a confession. Police claim their motive is to assist any investigation by possibly alerting more potential witnesses to the suspect's alleged crime to come forward. But by naming the suspect to the media and allowing them to detail the suspect's alleged crime it also primes potential jurors with information that could help the police's aim of securing a conviction. This has been noted by at least one experienced journalist and media commentator.314
A case in point is the on-going investigations into Perth's Claremont serial killer. The case involves the disappearance and murder of several young Perth women in the
1990's which understandably has frightened and outraged the community who in turn have brought great pressure on the police to find and prosecute the alleged offender.
The body of one of the missing women was found in 1996. Police told the media
113 vital clues had been gained from the crime scene but the details of the clues were not revealed. In April 1998 police detained a man, a Cottesloe public servant, who was later revealed to be their 'chief' suspect. They moved in after an intense surveillance operation over some months and had allegedly observed him in his car regularly following women as they left nightclubs. On the night he was taken in, detectives questioned him for several hours, then released him. With his consent they took
DNA samples. Also at his request he was subjected to a lie detector test. Lie detector tests are not admissible in any criminal court in Australia or the USA although it is doubtful if the public, brought up on a variety of US-based television crime shows, are aware of this.
In August 1998 ABC Television revealed the man's name and the fact that he had been given and failed a Polygraph, or lie detector, test. The man then subsequently, at his own request, consented to television interviews with other media to deny allegations put to him that he was in fact the serial killer. Most stations obscured his face with pixilation and did not fully identify him. One Channel did however, showing both his face and full name. Not surprisingly a storm of controversy arose over the release of the man's name. Although the task force Macro, which was set up to hunt the serial killer has vehemently denied they had anything to do with the release of the information, the ABC journalist involved said she had gained the information from police sources outside the Macro Task Force. Western Australian
Director of Public Prosecutions, Robert Cock, was one of several judicial figures unimpressed with police leaking such juror-sensitive information. He told Radio
National's Weekly investigative documentary Background Briefing that he could not
314 David Solomon, Contributing Editor The Courier-Mail, 'The Journalist's perspective', paper presented at The World Association of Press Council's First Oceania Regional Conference, Brisbane,
114 imagine a situation in which the results of a test, which in itself are not admissible in proceedings, could ever be justified.315
According to the President of the Australian Council for Civil Liberties, Terry
O'Gorman, by using the media the police were able to escape responsibility for revealing information they knew they were prevented from talking about in the public domain.316 Since then another suspect has accused West Australian police of threatening him with media exposure and relentless police scrutiny.317
A similar scenario has been played out in Queensland recently where police have named a man as the 'main person of interest' in a triple murder.318 On a number of occasions the man has been taken to various police stations for extensive interviews and forensic testing. On each occasion the media have been alerted to the development leading the man's lawyer to complain to the Crime and Misconduct
Commission about police tactics in using the media to 'create as strong as possible a presumption of guilt' against his client.319 A law making it an offence for the media to publicly identify someone as a suspect would stop this questionable 'back door' method of planting prejudicial information designed to help secure a conviction at the expense of a fair trial. This sort of 'unethical collusion' between the police and the media was also referred to in the Crime and Misconduct Commission's Inquiry into how sexual offences are handled by the Queensland criminal justice system.
June, 1999. 315 Radio National, Background Briefing, 25 June, 2000, transcript.
115
In her summary of the individual submissions to the Inquiry, the CMC's Senior
Research Officer Dr Margot Legosz said there were a number of reports that the media were aware that charges were either being laid or discontinued prior to such information being provided either to the complainant, the accused or their legal representatives.320 'The first details I heard about my case were on the front page of the Courier-Mail', wrote one accused currently serving a prison sentence.321 Many also spoke of the unauthorised release of confidential information, such as home addresses and telephone numbers which had lead to harassment from both the public and from others involved in their case.322 This is despite a number of relevant provisions in Queensland Police's Operation Procedures Manual and the Police
Service Administration Act 1990 (Qld) that regulate the release of information about suspects. Paragraph 1.10.9 of the OPM states that police officers and other
Queensland Police Service (QPS) staff may disclose information pertaining to investigations if:
• such disclosure is necessary for the effective conduct of the investigation, or
• the information is of such a nature that it would normally be released in the
public interest to media organisations and the like.
Paragraph 1.10.11 of the OPM is particularly relevant. It provides that police officers and other QPS staff are not to supply information to the media that identifies a
319 Ibid. 320 Dr Margot Legosz, 'A summary of the individual submissions', paper presented to the Crime and Misconduct Commission, An Inquriy into how sexual offences are handled by the Queensland criminal justice system, (2003). 321 Ibid. 322 Ibid.
116 defendant before (my emphasis) their appearance in open court.323 This paragraph prohibits police officers and other QPS staff from providing the media with a defendant's name prior to the defendant being charged. If a police officer or other staff member acts in contravention of this paragraph of the OPM, they can be subject to disciplinary action.
The Queensland Police Media Guidelines324 state that the name of an offender or accused should be released or confirmed only after their court appearance. Under section 10.1 of the Police Service Administration Act, it is an offence (as opposed to a breach of discipline) for police officers and other QPS staff to disclose information
(except for work purposes) that has come to their knowledge because of their employment subject to a few exceptions.325
The QPS policies are similar to the police polices in the United Kingdom where the
3Association of Chief Police Officers326 has issued guidelines that apply to all offences. The guidelines provide that anyone under investigation, but not charged, should not be named until after they have been charged. The Northern Territory
323 See 1.10.11 cl (xix) of the OPM under the heading 'Information not to be released – Order'. 324 Queensland Police Service, Media Guidelines for Employees of the Queensland Police Service, unpub. 325 The exceptions under the Queensland Police Media Guidelines are: • that disclosure is authorised by the Police Commissioner • the disclosure is about a drug diversion assessment and is made to the Director-General of Queensland Health • the disclosure is made under due process of law • the information is not of a confidential or privileged nature, or • the information would normally be made available to any member of the public on request.
326 Association of Chief Police Officers (Media Advisory Group) 2000, Guidance notes, unpublished.
117 Police, Fire and Emergency Services Media Policy327 also provides that the names of people charged with criminal offences should not be released before they have appeared in court. The New South Wales Police issued media guidelines to their members following two celebrated cases in which the presumption of innocence was flouted. One of them related to the arrest of a former police superintendent, Harry
Blackburn, in relation to a series of sexual assaults that stretched back to 1969.
Blackburn, a man whom a Royal Commission would later describe as having been of
'hitherto unblemished character' was paraded before the television cameras and other media before being taken to the Sydney Police Centre and charged with 25 offences.328 The charges were subsequently dropped through lack of evidence.
Blackburn reportedly recovered nearly a million dollars in damages after a defamation case he brought against the police was settled before it went to court. It is revealing that in the United States the deliberate parading of a suspect by police before the media spotlight is known as the 'perp walk'. Perp is an abbreviation for the word ‘perpetrator’, with all its negative connotations.
The CMC recently supported a recommendation of the Queensland Police Service's
Ethical Standards Command that two police officers associated with the arrest of controversial swimming coach Scott Volkers be disciplined for a breach of section
1.10 of the OPM.329 This arose as a result of a Courier-Mail journalist and a photographer being present when Mr Volkers arrived at Brisbane Police
Headquarters after his arrest on indecent dealing charges. According to Volker's legal
327 Northern Territory Police, Fire and Emergency Services, 1994, Media Policy,
118 representative the suggestion was the newspaper had been 'tipped off' about Mr
Volker's imminent arrest. A QPS investigation revealed that two officers had breached section 1.10 of the OPM that governs the release of information by police officers and it was recommended they face disciplinary action for misconduct. This sort of behaviour again supports the accusations that collusion between the police and the media are designed to cause maximum embarrassment and psychological pressure on a defendant. If a complaint had not been lodged by Volker's legal representative it is doubtful if disciplinary action would have been recommended.
However, on rare occasions the tables have been turned on police by suspects. For example, a Sydney security guard who allegedly shot dead a thief during a bungled robbery was ordered to present herself to police for questioning with a view to being charged with murder. Before talking to police she gave her version of events to a
Sunday newspaper and was reportedly paid $100,000 to give an interview to a television channel much to the anger of investigating police.330 But, as the Channel's news and current affairs director pointed out, as the security guard had not been charged with a crime at the time of the interview the money paid to her could not be caught by laws forbidding criminals to profit from their crimes.331 Angry police subsequently issued a warrant for her arrest to prevent the channel from talking to her for fear of breaching contempt laws. It is interesting police do not show the same anger or impatience with the media when it is in their interests to release prejudicial information before a suspect is charged.
330 'Guard faces murder charge', The Courier-Mail, Monday 2 August, 2004, .5. 331 Channel 7's news and current affairs director Peter Meakin interviewed on PM, ABC Radio 2 August, 2004, 6:40pm
119 5. REMEDIES FOR OVERCOMING THE EFFECTS OF PREJUDICIAL PUBLICITY BEFORE TRIAL
There are a number of options which courts take into account when examining remedies to overcome the effects of prejudicial pre-trial publicity. This thesis argues that many of these remedies would be unnecessary if the media were prevented from naming a suspect before they have been charged. In addition, it is argued, some of the usual remedies may in some circumstance cause more harm than good to the accused’s prospects of receiving a fair trial. Therefore it is germane to this thesis to discuss the most common remedies used by courts to overcome the effects of prejudicial pre-trial publicity.
5.1 DELAYING THE START OF A TRIAL
One remedy employed by the courts is to delay the start of the trial where allegedly prejudicial material has been published during the lead up to the trial date. The theory is jurors will be more likely to forget the prejudice with the passage of time.
The difficulty with this measure, sometimes referred to as the 'fade factor',332 is judging how much time is needed to dissipate the prejudice. In the United Kingdom the 'fade factor' phenomena was first referred to in R v Reade, Morris & Woodwiss
(unreported) at the Central Criminal Court on October 15 1993. In staying the proceedings against three West Midlands Police Officers, Garland J took into account the adverse publicity generated, but recognised that local prejudice may be temporary and may have an element of 'fade factor'.
120 But where prejudice becomes nationwide and does not abate, he said, a stay may be appropriate.333 For example, the start of the trial of the accused in the notorious Anita
Cobby murder was delayed for just one week following media publicity surrounding the earlier guilty plea of a co-accused. In that case the jury was discharged on the grounds that the reference in the media to the accused, Michael Murphy, as a prison escapee would result in unfair prejudice to him. When a new jury was re-convened a week later an application was made to adjourn the trial for a further six months following another media reference to Murphy as a prison escapee. Rejecting the application Maxwell J said the trial would always attract great publicity despite the effluxion of time and that the problem could be overcome by adequate and repeated directions to the jury. In upholding the judge's decision the NSW Court of Criminal
Appeal said His Honour had properly weighed the interests of the accused on one hand and the public interest in the due administration of the criminal law on the other. This view was subsequently shared by the High Court.334 It could be argued in view of the technological advances in communication since Murphy, the High Court may be placing too much reliance on the 'fade factor'. For example, the growth of the
Internet which now affords easy access to information to web sites and Blogs which often include unflattering details of an accused, especially public figures, such as prior convictions and other prejudicial conduct.
While there is a judicial presumption that prejudice caused by publicity is only of a temporary nature, its volume, intensity and continuing nature may produce a cumulative effect so that the consequent prejudice is fuelled and continued. Under these circumstances it is arguable that the presumption that the fade factor is
332 Ex Parte B Central Criminal Court (Unreported, Scott-Baker J, February 17, 1994.) 333 John Cooper, 'Fair Trials and adverse media publicity'(2001) Justis
121 successful in allaying memories of prejudicial material is rebuttable. It is also worth noting that a lapse of some two years in Hinch’s case was held to be insufficient to ameliorate the prejudicial effect of his prejudicial broadcast. Therefore it appears the durability of the prejudice is the determinative issue for courts when deciding the length of delay in starting proceedings. This is something of a 'case by case' test given there does not appear to be any mathematical calculation that can be applied in determining the length of time that will overcome different types of prejudice.
Furthermore, the media cannot be allowed to engage in prejudicial behaviour on the understanding there will always be a delay in starting proceedings because this may or may not be the case and, in any event, is out of their control.
122 5.2 CHANGING THE VENUE
A change of venue is another remedy that is sometimes employed to overcome prejudicial publicity. A trial judge generally has power by statute to order a change of venue of the trial.335 Ordinarily the place of trial is the jurisdiction within which an element of the alleged crime takes place.336 But while s 557(9) of the Queensland
Criminal Code permits a trial of a person with his or her consent in any jurisdiction, this does not permit the defence, even with the acquiescence or consent of the prosecution nominating a place of trial other than that satisfying s 557(1). It is also salutary to test the weight of s 557 in which trials ordinarily will be heard in the district in which the alleged crime occurred. In R v Yanner Pincus J said:
In some instances it may be relatively easy to obtain a change of venue – for
example where the charge is one of a grave crime, it appears that there is
considerable local hostility to the accused, and there is a much better chance of
justice being done if the venue is changed. 337
These remarks however, were quoted by counsel, without success (at least initially) in support of an application for a change of venue in Long’s case where, by any analysis, a grave crime existed. Eventually, following an appeal to the Supreme
Court, the Queensland Court of Appeal and an application for special leave to appeal to the High Court, the Chief Justice intervened, this time acceding to the original submission that the trial take place in Brisbane.
335 See eg Supreme Court Act (Qld.) s 223 336 Criminal Code (Qld.) s.557; also Rv Giddings [1916] VLR 359.
123 The reluctance of Australian courts to change venue seems to be echoed in the
United States where it was noted that even in the case of Jack Ruby, where by the time of trial every citizen of Dallas might have been expected to have seen the television film clip of Ruby shooting Lee Harvey Oswald, the trial judge refused to grant a motion for a change of venue.338 One recent exception was U.S. v
McVeigh,339 the Oklahoma bombing trial, in which the venue was changed to
Denver. Explaining his decision to move the trial Judge Matsch said extensive publicity before trial did not, in itself, preclude fairness because properly motivated and carefully instructed jurors can and have exercised discipline to disregard prior awareness[of publicity]. However, he went on to say that:
Trust in their ability to do so diminishes when the prior exposure is such that it
evokes strong emotional responses or such an identification with those directly
affected by the conduct at issue that the jurors feel a personal stake in the outcome.
That is also true when there is such identification with a community point of view
that jurors feel a sense of obligation to reach a result which will find general
acceptance in the relevant audience.340
The media pre-trial exposure in especially the Long case would create a parallel with the McVeigh case. As detailed above the emotional response invoked, especially in the Bundaberg area where the crime was alleged to have been committed was of a highly prejudicial nature. But as noted above developments in technology, especially the Internet, mean that changes of venue may no longer work in the way they once did. The ease of accessibility of information on the Internet, which may include
337 [1998] 2 Qd R. 338 Belli, M., My Life on Trial , Morrow, New York, 1976 at 260-261. 339 U.S. v McVeigh, 918 F.Supp.1467 (1996).
124 details of prior convictions and other conduct about the accused, could largely render a change of venue futile. Also, a change of venue may be of value if the risk of prejudice has predominantly been caused by local publicity but if the prejudicial publicity is national then there is nowhere else to go.
5.3 JUDICIAL INSTRUCTIONS
Judges regularly instruct jurors to ignore prejudicial publicity while they are deliberating on a case. The warning usually refers to matter published before the trial as well as during the trial. It usually takes the effect of the judge instructing the jury to decide according to the evidence put before them and the law alone and to put all other considerations out of their minds. There is no conclusive evidence as to how satisfactory this measure is. This has been acknowledged in the High Court in
Gilbert v The Queen341 by Gleeson CJ & Gummow J who said that while the system of criminal justice requires the assumption that juries follow and understand directions given by the trial judge it does not involve the assumption that their decision-making is unaffected by possible prejudice. According to a New South
Wales report342 the instruction, especially concerning in-trial publicity, is often ineffective, at least in relation to newspaper coverage of the trial. While some jurors obey it, others do not.
Furthermore the Australian Law Reform Commission’s report on Contempt343 refers to a newspaper report of a jury’s deliberations on a case, that when told their case
340 ibid 1473. 341 Gilbert v The Queen (2000) HCA 15 342 Chesterman M , Chan J and Hampson S, Managing Prejudicial Publicity: An empirical study of criminal jury trials in New South Wales (2001) 207.
125 had been discussed in the press and that they should ignore the press reports, their response was to make a special effort to find out what had been said in the press and to discuss its significance among themselves. In earlier times it could be assumed judges in their admonitions were referring to television and newspaper reports. Over the past decade the Internet has provided easy access to news events and information about a defendant’s prior criminal record. For example, there is a dedicated site known as CrimeNet344 in which, for a small fee, one is able to access a person's prior criminal record and other details. This site has led to, at least, one judge in Victoria discharging a jury after it was revealed the jury may have had access to the accused's prior criminal record.345 It is also a problem for the courts in what courts now, almost automatically, publish on their own websites or through services such as Austlii. In one recent case the issue arose because a jury could, theoretically, access rulings made by the court, and posted on the court website, during the course of a second trial. These rulings remained accessible by jurors sitting in the second trial.346
A television broadcast or a newspaper article may appear only briefly and then is relegated to archives that often not only require substantial effort to research but also can require payment. In contrast, Internet sites easily retain accessible information allowing a prospective or actual juror to retrieve it at will. It is not clear whether or not juries should be directed not to access the Internet, as this may encourage some to secretly do so. In Queensland, by 69A of the Jury Act 1995, a juror would commit
343 Australian Law Reform Commission, Contempt, Report No 35 (1987) at para 163. 344 www.crimenet.com.au ( 10 December 2004). 345 R v McLachlan [2000] VSC 215; R v Cogley [2000] VSCA 231 was similarly a case involving an application to discharge a jury when concerns arose as to whether one or more members of the jury may have seen an entry on the Crime Net Internet site. 346 DPP v Weiss [2002] VSC 153.
126 an offence if he or she were to make inquiries about the defendant in the trial. The word 'inquire' is specifically defined to include searching an electronic database.
However, this is not the case in other jurisdictions. The New South Wales Law
Reform Commission has decided that it is too early to conclude that new communication technologies such as the Internet will render the sub judice rule unworkable.347 However, this comment was made before the NSW Court of Criminal
Appeal quashed a murder verdict and ordered a new trial after jurors ignored a judge's orders by finding incriminating information about the accused on the
Internet348. At the time of writing it was reported that legislation will shortly be introduced in NSW to make it an offence for jurors to deliberately disregard instructions not to carry out their own research.349 Seven weeks after this announcement another trial in New South Wales was aborted after two jurors ignored a judge's warnings not to surf the Internet, conduct their own investigations or speak to relatives about the trial or evidence.350 NSW Attorney-General, Bob Debus, was reported as telling Parliament the new laws were designed to crack down on 'a few renegade jurors'.351 However, the widespread use of the Internet would suggest the practice of jurors surfing the Internet may not be confined to just a few.
Judicial instructions have also been criticised in American jurisdictions. Judge
Learned Hand described instructions telling the jury to ignore information learned
347 New South Wales Law reform Commission, Contempt by publication, Report 100 ( 2003) at para 2.67. 348 R v K [2003] NSWCCA 406. 349 Sydney Morning Herald, 5 July 2004 at .5. 350 Les Kennedy, '$1m trial aborted as jurors defy judge', Sydney Morning Herald, 21 October, 2004. 351 Ibid.
127 outside the court as a 'placebo'352 requiring of a jury 'a mental gymnastic which is beyond, not only their powers but anybody's else [sic]'.353 Another American judge put the issue more bluntly, 'the naïve assumption that prejudicial effects can be overcome by instructions to the jury all practising lawyers know to be unmitigated fiction'.354 In Zoneff v The Queen355 Kirby J cited research studies that indicated jurors were sometimes 'dumfounded' by the directions given to them on the law and that despite their best endeavours to pay careful attention to what they were told by the judge there was a relatively low rate of comprehension of some concepts which lawyers thought were central to the task of the jury.
Nevertheless most judges in Australia consider that directions to a jury to ignore prejudicial publicity remain an effective remedy.356 This is despite there being no credible study that indicates that judicial instructions limit the effects of prejudicial media bias. Indeed there is some doubt about the ability of jurors to understand, remember, and apply the legal principles explained by the judge, especially in fraud trials or where there are several defendants or a multiplicity of counts.357 As the author of a Victoria Law Reform report into jury service put it:
For two to three hours he (the judge) reads to 12 laymen enough law to keep a law
student busy for a semester. Twelve individuals selected more or less at random, sit
there, unable to take notes or ask questions. Somehow, just by listening, it is
352 United States v Delli Paoli (1956) F.2d 319, 321. 353 Nash v United States (1932) 54 F.2d 1006, 1007. 354 Krulevitch v US (1949) 336 US 440, 453 355 Zoneff v The Queen (2000) HCA 28 at para.65. 356 Chesterman , M Chan J and Hampson, S Managing Prejudicial Publicity: An empirical study of criminal jury trials in New South Wales (2001) 207; Les A. McCrimmon, 'Challenging a potential juror for cause: resuscitation or requiem?" (2000) 23 (1) UNSW Law Journal 137. 357 James(Sir), A; ‘What judges say to juries, from the point of view of juries and of the Court of Appeal (Criminal Division)’, eds., Walker, N and Pearson, A The British Jury System; Papers presented to the Cropwood Round-Table Conference, University of Cambridge Press, Cambridge, 1975, pp. 56-63.
128 presumed everything spoken by the judge will take root in their collective
intelligence. 358
And, according to one authority ‘the most serious problem that jurors encounter in their efforts to get things right appears to be an inability to apply instructions correctly’.359 Much of the research undertaken on the effect of a judge’s instructions to jurors has been contradictory. Some research indicates that jurors do respond as intended to instructions360 while others have found that instructions are often ignored.361 In reality it is simply impossible to assess whether judges directions effectively overcome the adverse effect of the jury hearing prejudicial and inadmissible evidence against an accused.
Therefore, in the absence of convincing evidence that jurors will not be affected by prejudice, it is submitted the more prudent practice would be for judges to err on the side of caution in cases that have attracted prejudicial publicity and not simply rely on judicial instructions to jurors to ignore the publicity.
5.4 DISCHARGING A JURY BEFORE VERDICT
Where a trial judge believes that publicity has an inherent risk of influencing a jury and it would be dangerous to proceed, he or she may order that the jury be
358 Cowie, M, Victorian Law Reform Commission, Jury Service in Victoria, Final Report, Volume 3 (1997) para 2.202. 359 Charrow R.P. and Charrow V.R., ‘Making legal language understandable: a psycholinguistic study of jury instructions’, (1979) 79 Columbia Law Review 165. 360 E.Borgida and R Park, ‘The Entrapment defence’ (1988) 12 Law and Human Behaviour 19; K.L. Pickel, ‘Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help (1995) 19 Law and Human Behaviour 407. 361 S. Tanford and M. Cox, ‘The Effects of Impeachment Evidence’ (1988) 12 Law and Human Behaviour 477.
129 discharged.362 This situation may arise, for example, where there has been publication of a prior conviction or an alleged confession. In a recent NSW criminal trial there was publication in Sydney’s Daily Telegraph of the accused’s previous conviction of the offence he was currently being re-tried for. The judge had not hesitation in aborting the trial agreeing with submissions that instructions to the jury could not repair the damage.363 The jury was discharged. Judges have always had the power to discharge a jury where there has been some irregularity of a sufficient standard to risk a miscarriage of justice. This could be seen as a less than desirable remedy if the trial is delayed for a long time because of the obvious risks in terms of availability of witnesses, records and fading memories. However, judges often overcome this problem by almost immediately empanelling another jury from a fresh panel of jurors.364 Each case must turn upon its own facts and the situation was summarised by Street CJ in R v George when he said:
'The principle is essentially one that places responsibility upon the trial judge to
determine, in the light of the atmosphere of the trial and the nature and extent of the
publicity, whether its is necessary to discharge the jury in the interests of ensuring a
fair trial.'365
In essence a judge has the discretionary power to discharge a jury and many are of the opinion that any further risk of potential prejudice through media reporting can be repaired by appropriate direction to the jury.
362 R v Sherrin (1978) 20 SASR 164. 363 ‘Trial aborted following report in Telegraph’, Gazette of Law & Journalism, (Sydney), 31 January 2001,
130 5.5 CHALLENGE FOR CAUSE
The High Court of Australia has recognised the challenge for cause as one of the procedural safeguards available to ensure the accused in a criminal case receives a fair trial. Most States and Territories have legislation which allows for challenge for cause.366 However, there is not a right as such to question jurors. Whether or not pre- trial publicity has prejudiced a juror is a judgment left to the discretion of the trial judge. As noted below, this finding will not necessarily correspond to a social scientist's idea of a preformed bias towards an issue. It was held in the Queensland case of R v Manson367 that, as under the general law, there is no right to cross- examine a juror to establish that he/she is not impartial towards the accused unless there is first shown a foundation of fact creating a prima facie case. In that case defence counsel had challenged for cause the first juror called on the grounds that the horrifying nature of the crime (the death of a child through a rape) created a real risk that a juror would not be able to be indifferent and that the wide publicity during the stages of investigation and committal were such that there was a risk that jurors would be prejudiced against the accused. The trial judge held that the facts were insufficient to allow defence counsel to cross-examine any juror called. The Court of
Criminal Appeal in dismissing the appeal cited with approval the following statement of Lord Parker C.J. in R v Chandler (No. 2):
…before any right to cross-examine the juror arose, the defendant would have to lay
a foundation of fact in support of his ground of challenge…. There must be a
366 Juries Act 1967 (ACT), s36A; Juries Act (NT), s 42; Jury Act 1977 (NSW), s46; Jury Act 1995 (Qld), s47; Juries Act 1927 (SA), s68; Jury Act 1899 (Tas), s52; Juries Act 2000 (Vic) s34. 367 [1974] Qd R 191.
131 foundation of fact creating a prima facie case before the juror can be cross-
examined. 368
This judgment would seem to mean that newspaper or media reports in themselves do not amount to sufficient evidence to prove the fact or establish a ground to challenge for cause. Furthermore reference was made with approval to a judgment in the Court of Criminal Appeal of Ireland The People v Lehman (No.2)369 where it was said to be well settled law that even expressions of opinion by a juror are not a ground of challenge unless they are corrupt as proceeding from malice or ill-will, and that jurors if challenged cannot be questioned about such expressions which must be proved from another place or person. In other words courts will not tolerate so-called
'fishing expeditions'.
Manson was followed shortly afterwards in the notorious case of R v Stuart and
Finch370 involving the ‘Whiskey Au Go Go’ bombing in which a number of people died. Despite the enormous prejudicial publicity this case received, the Court of
Criminal Appeal approved the course taken by the trial judge of refusing to allow questioning of jurors with a view to supporting challenges for cause. The leading
Australian case on challenge for cause, Murphy v The Queen371 involved prejudicial pre-trial publicity. There the Court noted that in cases where bias was alleged from prejudicial publicity, the evidence needed to establish a prima facie case would take the form of an affidavit relating to the disposition of a particular juror.372
368 [1964] 2 QB 322 at 338. 369 [1947] Ir.R. 137. 370 [1974] Qd R 297. 371 (1989) 167 CLR 94.
132 In Murphy, even though one prospective juror was discharged before trial after admitting she did not feel she could fulfill her duty impartially as a result of the pre- trial publicity and the acceptance of 'voluminous press publicity'373 it was held by the
New South Wales Court of Criminal appeal374 and later the High Court375 to be an insufficient foundation of fact to justify a challenge for cause. Discussing this
Brennan J said that in theory one might think that bias can be detected by questioning jurors and disqualifying those who admit bias. In practice the efficacy of the procedure detecting bias is doubtful.376
Furthermore, cases in which evidence of adverse media publicity will provide a sufficient foundation of fact to justify the granting of an application to challenge jurors for cause 'are exceptional cases'.377 Murphy's case was also considered with approval by the Queensland Supreme Court of Appeal when hearing the appeal against the second trial of R v D'Arcy. 378 One of the grounds for appeal was the trial judge refused to allow the appellant's counsel to question the jurors about adverse pre-trial publicity and the prejudice against the appellant that may have arisen in the minds of the jurors. In his decision the judge referred to the fact that although the publicity was adverse it did not relate to the charges that were the subject of the trial.
He also pointed out the substantial time that had elapsed between the worst of the adverse publicity and the start of the trial. During the course of empanelment of the
372 Murphy v The Queen (1989) 167 CLR 104. 373 Murphy, Murphy, Murphy and Murphy v The Queen (1987) 37 A Crim R 118 at 122. 374 Ibid 125-6. 375 Murphy v The Queen (1989) 167 CLR 104. 376 Ibid 123. Brennan CJ said: "If the procedure is adopted, it may lead the jurors to think that the community's confidence in their impartiality and sense of responsibility is heavily qualified. A juror who would not voluntarily seek to be excused because of bias would not readily confess that bias under questioning if he were challenged for cause". 377 ibid 104. 378 (2003) QCA 124.
133 jury two jurors asked to be excused, one of them on the basis that he did not think he could be fair at the trial. That juror was then challenged. The judge then gave the remaining jury the usual instruction that if they considered they could not act impartially they should tell him. He also went on to warn jurors, in the usual fashion, to ignore pre-trial publicity and only to concentrate on the evidence before them. In dismissing this ground of appeal the Appeal Court said there was no reason to think that the trial judge had erred in applying the principles of Murphy v The Queen in
D'Arcy's case.
This decision would appear to be unexceptional in Australian courts because according to McCrimmon379 in Australia the relevant case law suggests that trial judges prefer judicial instructions to the jury instead of allowing challenges for cause to overcome the effects of prejudicial publicity. This is despite empirical evidence suggesting that judges may place too much confidence in judicial directions.380
However, the door has been left ajar by one case where it was said that if a properly conducted and properly proved survey report shows that, for all practical purposes, every member of the panel is likely to be prejudiced against an accused, that by itself would provide a sufficient foundation for challenging each member of the panel for cause.381 But Drummond J went on to say that it would be an exceptional case to have survey evidence that went so far as to establish that.382 In the same case Davies
J said such a survey 'would be conducted only with the express approval of and
379 Les A. McCrimmon, ‘Challenging a potential juror for cause: resuscitation or requiem?’(2000) 23(1) UNSW Law Journal 137. 380 Tanford S, ‘The Law and Psychology of Jury Instructions’ (1990) 69 Nebraska Law Review 71 at 106. 381 Bush v The Queen (1993) 43 FCR 555. 382 ibid 555.
134 subject to the directions of the judge appointed to the trial'.383 Therefore it was proper for those representing the accused to seek the permission of the court to do so.
An exceptional English case was R v Maxwell384 involving the sons of the late, disgraced media tycoon Robert Maxwell who were charged with fraud on a massive scale. Not surprisingly this case attracted blanket media coverage in England and abroad. Empanelling the jury took several days during which time the minority of the jury who expressed themselves able to spare six months for the trial were required to answer an agreed forty-item questionnaire about their attitudes. Those not sifted out by mutual agreement were questioned further by the judge in open court, the jury being drawn randomly from the 'survivors'.385 This case illustrates that quite apart from challenges by the prosecution or defence, the trial judge has power of his or her own motion to direct the removal from the panel of a juror who for any reason is considered unlikely to be impartial.386 The power is confirmed in earlier decisions such as that of the New Zealand Court of Appeal in R v Grenning387 and the Full
Court of the Victorian Supreme Court in R v Cullen.388 It has support from some other Australian authorities who argue a properly designed and administered survey has the potential to assist the trial judge in making important determinations.389 For example:
383 Ibid, 552. 384 R v Maxwell, Central Criminal Court, (Unreported), May 25, 1995). 385 Corker d & Levi M, ‘Pre-trial Publicity and its Treatment in the English Courts’, Criminal Law Review (1996) at 628. 386 R v Rawcliffe (1977) NSWLR 219 at 221-223. 387 [1957] NZLR 906 at 914-917. 388 [1951] VR 335. 389 Ian Freckleton & Hugh Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 2nd Ed , Butterworths, Sydney, 2002 at 125.
135 1. Is the strength of prejudice and prejudgment about a case such that a
trial can or cannot be held in the immediate future? If it seems that it
cannot, there should be the ability to conduct another comparable
survey several months later so as to measure any changed responses.
2. If it is apparent that a trial can be held soon, or should not be delayed
any longer, then in the light of the survey results what specific
questions should be put by the trial judge to those called for jury duty
so as to weed out those whose prejudices or prejudgment entail that
the presumption of innocence has no life?
3. Both in the opening remarks and in directions to the jury the trial
judge can make comments which reflect the knowledge gained from
the survey. Hence what is said is not mere generality but focused upon
the task of ensuring a fair trial in uncommon circumstances.
Where it is proposed by either or both parties that there be a survey of the potential juror population then it would be useful and efficient for the trial judge to be involved from the start as stated by Davies J in Bush v The Queen above.
Interestingly voir dire is the remedy for pre-trial publicity favoured by most US judges.390The contrast between the Anglo-Saxon approach and the lengthy voir dire interrogations typical of high-profile American trials is very striking. In one study it was estimated the average time spent selecting a jury in New South Wales was 30 minutes, whereas in California it could take up to six weeks.391 There has however, been little research about the effectiveness of voir dire as a means of identifying
390 Carroll, Kerr, Alfini, Weaver, MacCoun & Feldman,' Free Press and Fair Trial: The Role of Behavioral Research,' (1986) 10 Law & Human Behaviour at 187 and 192. 391 Philip. R. Weems, 'A Comparison of Jury Selection Procedures for Criminal Trials in New South Wales and California,' (1984) 10 Sydney Law Review 330 at 340-347.
136 prejudice.392 What research that has been carried out in America suggests that jurors tend not to speak out during voir dire nor admit to their true prejudices and preconceptions.393 Jurors may also be unaware of their prejudices. Another danger in questioning jurors as to whether they have encountered publicity is likely to be that some members of the jury may be reminded of the prejudicial publicity, perhaps in a manner suggesting that they ought to be prejudiced against the accused. It would be akin to a process adopted by political parties known as 'push polling'. Thus even if a survey could produce relevantly probative information it would carry with it a risk that it would create or support a negative attitude to the accused that was not otherwise in existence. Social influences may also cause voir dire to be ineffective.
For instance, it is highly unlikely that someone will admit publicly to being a bigot.
There is also a risk that reluctant jurors will use confessions of prejudice as a convenient method of avoiding jury duty.
In conclusion it must be accepted that while the procedure to challenge for cause in the case of pre-trial prejudicial publicity available in Australia, the practice of
Australian courts up until the present has been against its adoption and there is no evidence to suggest this situation will change in the future.
392 Bronson EJ, 'The Effectiveness of Voir dire in Discovering Prejudice in High-Publicity Cases: An Archival Study of the Minimization Effect' (1989) (paper prepared for 25th anniversary meeting of Law and Society Association noting lack of social science literature on general effectiveness of voir dire). 393 See Broeder, 'Voir Dire examinations: An Empirical Study,' 38 South California Law Review (1965) at 503 and 528.
137 5.6 PERMANENT STAY OF PROCEEDINGS
There is a power to stay an indictment permanently on the grounds that no direction from the trial judge could be expected to diminish the impact of prejudicial publicity rendering a fair trial at any time to be impossible. Most recently it was recognised by the High Court in R v Glennon394 and the Court of Appeal in Queensland in R v
Lewis395 and R v Long 396 But apart from the unique case of Tuckiar v R 397 there has been no reported case in Australia of an accused’s conviction being quashed and a verdict of acquittal then entered on the grounds of the potential prejudicial effect of pre-trial publicity. Of particular relevance are the remarks of Pincus JA in R v Lewis
398where after referring to Murphy v R he said:
In my opinion it is not necessarily enough, in order to justify a permanent stay, to
show that the offences alleged against the appellant have been thoroughly canvassed
in the media and a great deal of material prejudicial to the appellant has been
published. If it is the law that, in extreme circumstances, the only proper exercise of
discretion would be to grant a permanent stay, it does not appear that the
circumstances of the present case are sufficiently extreme. The matter was argued in
this court as it was the worst conceivable case of pre-trial publicity, but plainly it
was not. One would expect the worst case to be one in which the crime alleged was
one of horrendous kind, inciting universal revulsion (as in Murphy) and where the
published material, perhaps pictorial evidence, was such as to be virtually conclusive
394 (1992) 173 CLR 592. 395 [1992] 1 Qd R 613. 396 R v Long 054 (Unreported, Supreme Court of Queensland, Dutney J, 18 February 2002). 397 (1934) 52 CLR 335. After the prisoner was convicted, his counsel made a public statement in court that confessional material admitted against the prisoner was correct. An appeal having been allowed, a verdict of acquittal was entered because, in the view of the court, the prisoner could not justly be subjected to another trial. 398 [1992] 1 QdR 613 at 636.
138 of guilt. Even in circumstances of that kind, in which it might be difficult to induce a
jury to take arguments on behalf of the accused seriously, it is not clear that the
accused would be entitled to a permanent stay. 399
This passage was heavily relied on by senior counsel in R v Long 400where it was submitted the case was distinguishable from Lewis and Glennon because the crime, involving the death of 15 young people, did invoke revulsion and horror. Rejecting this submission Dutney J 401referred to remarks by Mason CJ and Toohey in Murphy when they said:
The importance of a fair trial to an accused must not be underestimated. But it is not
the only consideration. It is important that anyone charged with a criminal offence
be brought to trial expeditiously. 402
In his judgment Dutney J ruled there was 'a strong public interest in having the trial proceed.' He questioned whether the prejudice against the accused was so great that the trial must inevitably miscarry. Referring to the prejudicial media coverage he said it had been some 20 months since the publicity had occurred and therefore with the lapse of time and proper directions he was not convinced that the risk was so great as to amount to a 'significant and unacceptable likelihood that the trial would be vitiated by impermissible prejudice and prejudgment'.403 Dutney J's judgment was upheld on appeal.404 In his judgment Jerrard JJA 405 set out the considerations which are relevant on an application for a stay based on pre-trial publicity. These included:
399 (1989) 167 CLR 94. 400 R v Long 054 (Unreported, Supreme Court of Queensland, Dutney J, 18 February 2002) . 401 ibid 7-8. 402 (1989) 167 CLR 94 at 99. 403 R v Glennon (1992) 173 CLR 592 at 623-624. 404 R v Long: ex parte A-G (Qld) (2003) QCA 77.
139
I. the extent and nature of the publicity, when it occurred, and the nature of the
offence charged:
II. the legitimate public interest, and legitimate private interests of a person
charged with a crime, the witnesses, the victim of the alleged crimes and their
relatives, in the ordinary and expeditious process of prosecution to verdict of
those charges:406
III. that in this era of intense commercial publication of information about
immediately current events, and easy electronic access to that, there can be no
guarantee an individual juror may not have been influenced by pre trial
publicity:407
IV. that recognition of that possibility408 requires judges to do what can be done
to protect the integrity of the criminal process, including but not limited to
punishment for contempt, adjourning a trial until the influence of prejudicial
publicity subsides, ordering a change of venue for the hearing of a trial,
ordering separate trials for different accused persons, and giving express
directions to jurors that their verdict must be based on the evidence given
before them on trial and that in reaching that verdict they must disregard
knowledge otherwise acquired:409
V. that of necessity the law places much reliance on the integrity and sense of
duty of jurors to comply with such directions and give a verdict based on the
405 para 166. 406 See Murphy v R (1989) 167 CLR 98, R v Glennon (1992) 173 CLR 598 and Johansen & Chambers v R (1996) 87 A Crim R 126. 407 As observed by Mason CJ and Toohey J in Murphy v R (1989) 167 CLR 101, cited by Brennan J in R v Glennon (1992) 173 CLR 614; see also R v Lewis (1994) 1 Qd R 636. 408 Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 603. 409 See R v Glennon (1992) 173 CLR 614 per Brennan J and Murphy v R (1989)167 CLR 99 per Mason CJ and Toohey J.
140 evidence led.410 Accordingly it is necessary to show more than the possibility
that a juror or jurors would have gained knowledge of prior convictions to
support the argument that it was likely those jurors would or did ignore or
disobey directions given:411
VI. that the necessary assumption that jurors understand and follow directions
given by trial judges can give way to recognition that jurors' decision making
is affected by matters of possible prejudice,412 where more is shown than the
mere possibility a juror would have gained knowledge of inadmissible and
prejudicial matters. It is in these cases that the discretionary exercise of the
powers of the trial judge is critical, including the power of adjournment for a
lengthy period:
VII. that a permanent stay will only be ordered in an extreme case where there has
been adverse pre-trial publicity of such a nature that nothing a trial judge can
do in the conduct of a trial could relieve against its unfair consequences.413
The need to maintain public confidence in the administration of justice, and
the public interest in ensuring that the judicial processes are not abused and
that trials are fair to the people charged, means that a permanent stay should
be ordered when it is impossible to ensure that a fair trial could take place.414
VIII. the fact that adverse publicity is deliberately generated by those for whom the
Crown should properly be held responsible may have the result that justice
requires a permanent stay be granted.415
410 See R v Glennon (1992) 173 CLR 614-615 per Brennan J, Gilbert v R (2000) 74 ALJR 676 and R v Davidson (2000) and R v Lewis (1994) 1 Qd R 637. 411 R v Davidson (2000) 300 QCA 14. 412 R v Gilbert (2000) 74 ALJR 13. 413 R v Glennon (1992) 173 CLR 605 per Mason CJ and Toohey J. 414 Johannsen & Chambers v R (1996) 87 A Crim R 131 and 142.
141 There is no doubt therefore, judging by the relevant case law in Australia, the bar is set very high for an application for a permanent stay of proceedings based on prejudicial publicity either pre-trial or in-trial. This was reiterated by the Chief
Justice of the High Court when hearing a special application for leave to appeal by
Robert Paul Long as recently as June, 2004.416 During the course of argument by
Long's counsel for a permanent stay of proceedings because of prejudicial pre-trial publicity, Gleeson CJ said a judge should stop long and hard before reaching the conclusion that an accused could not get a fair trial as the result of prejudicial publicity.417 The Chief Justice was firmly of the view that the giving of appropriate warnings and directions to juries to decide the case according to the evidence was sufficient to ensure a fair trial.418 As a consequence the special leave application was dismissed. The irony was that while Australian courts are willing to hold that prejudice is likely to result from a pre-trial publication, they are reluctant to rule that such a publication does, as a matter of practical reality, prejudice the jury if the accused appeals against his or her conviction. While the Chief Justice of New South
Wales has acknowledged the possibility that media publicity may create a situation in which an accused will not be able to have a fair trial419 the exceptional case has yet to arrive.
However, prejudicial pre-trial publicity was partly responsible for the refusal of leave to bring a private prosecution in the recent Queensland case of Gilbert v Volkers.420
Ms Gilbert brought an application seeking leave, under s 686 of the Criminal Code,
415 R v Lewis (1994) 1 Qd R 636. 416 Long v The Queen (2004) HCA Transcript 232 (23 June 2004). 417 Ibid 3. 418 Ibid 2. 419 Spigelman JJ, Chief Justice of New South Wales, ‘The truth Can Cost Too Much: The Principle of a Fair Trial’, The fourth Gerard Brennan Lecture, Bond University, Gold Coast, 25 October 2003.
142 to bring a private prosecution against Mr Volkers on four charges of indecent dealing. Ms Gilbert, who was also one of the complainants in respect of those charges, brought her application after the DPP decided not to proceed with a public prosecution. There was extensive media coverage of the case which intensified after the DPP's decision not to proceed. For example, Mr Volker's solicitor made comments in newspapers and on national radio to the effect that the DPP's decision to drop the case vindicated his client's stance that the accusations were false.
It culminated with Ms Gilbert taking part in Australian Story421 (an ABC television program) in which she aired her accusations against Mr Volkers. Later on the ABC ran another program focusing on the case, this time as a segment of its Four
Corners422 series. A number of complainants participated in the program, including
Mr Volkers' stepbrother who alleged he had witnessed Mr Volkers indecently dealing with young teenage girls. Following the airing of the show, the audience was invited to discuss the program online with Ms Gilbert and another complainant with about 75 people taking up the opportunity.423 The media coverage therefore ensured a very public dispute in which both Mr Volkers and Ms Gilbert appeared to be encouraging public support for their respective 'sides'. It was this perception of a personal contest between the applicant and respondent that persuaded Holmes J to refuse leave to bring a private prosecution.424 The weight Holmes J gave to the
'private' character of the intended prosecution should be emphasised: it was that in conjunction with the publicity which influenced Her Honour. She observed that:
420 (2004) QSC 436. 421 Australian Story, ABC TV, 8pm, 10 February 2003. 422 Four Corners, ABC TV, 8:30pm, 5 July 2004. 423 Gilbert v Volkers (2004) QSC 436, paras 30-35.
143 the existence of prejudicial material in the public form would not of itself dissuade
me from granting leave: courts seldom stay trials because of adverse publicity,
considering that appropriate directions can largely obviate the prejudice caused. But
the case is, I think, in rather a different category. 425
One would surmise from this that Mr Volkers would have been unsuccessful if applying for a stay of proceedings, even given the extensive adverse publicity, had the DPP decided not to drop the prosecution.
There has been speculation by some commentators however, that a permanent stay of proceedings as a result of prejudicial pre trial publicity may have been granted for the second time in Australian judicial history had infamous Australian corporate fugitive, the late Christopher Skase, been brought to trial in this country.426 Skase was the subject of enormous prejudicial publicity in Australia during the 1990’s while he was exiled in Spain fighting extradition. Certainly it could be said that
Skase was a person who needed no introduction to Australians in the most negative sense imaginable thanks to the news media and successive Federal governments' sustained campaign against him over the course of several years. This then would surely have raised problems in selecting a jury who could fairly be said to be impartial had his trial for criminal charges gone ahead. It would have been almost certain that an application for a permanent stay of proceedings would have been the first plank of any defence platform mounted by his lawyers in the event of a trial in
Australia. Should a permanent stay of proceedings been granted one could only imagine the public and political outrage such a decision would have engendered.
424 Gilbert v Volkers (2004) QSC 436, paras 45-48. 425 Ibid para 45.
144
Notwithstanding the separation of powers it would be fairly easy to see the pressure that would be brought to bear on the court responsible for such a decision. This again raises the question; could the subject of such prejudicial pre-trial publicity ever be tried fairly? An English judge at Harrow Crown Court answered this question in
September 1995427 where he ordered a stay of the proceedings against a defendant
Geoff Knights on the ground of prejudice caused by pre-trial publicity alone. This is believed to be the first case in the United Kingdom where prejudicial pre-trial publicity has been the sole reasoning for abandoning a trial. Knights was the well- known de facto husband of a 'soap' star, one Gillian Taylforth, and following his arrest for the alleged assault and unlawful wounding upon Taylforth’s driver, some newspapers published hostile comments impugning his character, including information about previous convictions and brushes with he law which would have been inadmissible at trial. In this case the Judge said during his ruling:
The reporting was unlawful, misleading and scandalous. Certain reporters were
determined to run a hate campaign against Knights unchecked by their editors and
without any regard to the interests of justice. I have absolutely no doubt that the
massive media publicity in this case was unfair, outrageous and oppressive. 428
Although the Attorney-General failed in subsequent proceedings against five newspapers for contempt of court resulting from the prejudicial publicity this was due to the disadvantage any Attorney-General in the UK has in bringing prosecutions
426 Giddings, J, ‘Would Christopher Skase Receive a Fair Trial?’ (2000) Criminal Law Journal 24 at 281. 427 Corker D and Levi M, ‘Pre-trial Publicity and its Treatment in the English Courts’, Criminal Law Review, (1996) at 622 428 The Times, August 1,1996.
145 under the Contempt of Court Act 1981. The statutory test requires the Attorney to satisfy the court that a particular article or broadcast itself (in isolation from any other media report) has created a substantial risk of serious prejudice. As the Corker
& Levi article points out, in reality the risk of prejudice arises most frequently from the cumulative or 'snowball' effect of publicity over a period of time not from a single article or broadcast.429
5.7 TRIAL BY JUDGE ALONE
Some Australian jurisdictions have provision for trial by judge alone.430 In Canada the accused may choose, 431 with the consent of the Attorney-General, and this can protect an accused who believes that pre-trial publicity may have prejudiced potential jurors against him or her.432 This could be a remedy when the level of prejudicial material is so strong that it cannot be overcome by a judge’s instructions to the jury.
It may be something that could be adopted just short of a permanent stay of proceedings. The rationale being a legally trained judge would be less likely to be swayed by prejudice generated by the media. Although there has been some comment that judges too are not immune from the impact of strong prejudicial publicity.433 For example, in Western Australia the mother of a sexual offence complainant initiated a public campaign, with the full and vociferous support of the local media, against what she argued was the light sentence afforded to a convicted sex offender. The subsequent decision by the Appeal Court to considerably lengthen
429 Corker D and Levi M., 'Pre-trial Publicity and its Treatment in the English Courts", (1996),Criminal Law Review, at 627. 430 NSW Criminal Procedure Act, 1986, s 32, s33; WA Criminal Code, Ch LXIVA; ACT Supreme Court Act 1933, Pt VII; SA Juries Act, s7. 431 In respect of an offence listed in s 469 of the Criminal Code of Canada. 432 Charter of Rights and Freedoms, s 11(f) and s 473 of the Criminal Code of Canada.
146 the offender's sentence was not remarkable but what was, according to some Western
Australian lawyers, was the speed with which the appeal was heard.434 The question was asked: 'Would the case have been handled differently, but for the pressure exerted by the media on the judiciary'?
Nevertheless, The New Zealand Law Commission's 1998 Discussion Paper on Juries on Criminal Trials suggests that trials attracting publicity and sexual offences are among the prime cases which may be proper candidates for a judge alone trial.435 The matter has also been considered by the NSW Law Reform Commission.436 It raised the scenario where pre-trial publicity has been prolonged and substantial, arousing a good deal of public debate as in, the Chamberlain and Trimbole cases, there may be a good case for giving the accused the option to elect trial by a judge sitting alone.437
The Commission suggested that the case for a trial by a judge sitting alone because the widespread prejudicial publicity made the other remedies, like directions to a jury, ineffective the case must be made out by the accused before it would be contemplated.438
Trial by judge alone has a number of other advantages too, for example, economically there would almost certainly be actual court time saved by reason of the greater flexibility which a trial without a jury would allow. Time would be saved by not having to rule immediately on issues of law or sum up to a jury. The method
433 Mark Trowell QC, 'The media and the criminal law', paper presented to Lawasia Downunder 2005, Gold Coast 24 March 2005. 434 The Queen v Hough (2002) WASCA 42. 435 Preliminary Papers 32 and 37 "Juries in Criminal Trials" (July 1998 and November 1999) New Zealand Law Reform Commission. 436 NSW Law Reform Commission, , Criminal Procedure: The Jury in a Criminal Trial, Discussion Paper 12 (1985) at para.7.23. 437 Ibid. 438 Ibid.
147 of advocacy should also reduce the trial’s length. However, if an accused is to be tried without a jury it should be his election as is the case in some jurisdictions which allow trial by judge alone. In Western Australia Chapter LXIV of the Criminal Code the Chapter allows an election to be made by an accused person for trial by judge alone but the election has no effect unless the Crown consents. The election must be made before the judge is known in order to prevent 'judge shopping'. However, trial by judge alone has not been utilised much in the Supreme and District Courts of
Western Australia. In the District Court computer records show that only 16 judge alone trials were held since the 'Trial by Judge Alone' Chapter was first introduced in1994 up until the year 2000.439 Similar statistics can be found in the Supreme Court records.
According to the author of the 1998 Western Australian Consultation Draft Trial by
Judge Alone, some of the under-utilisation can be as a result of the provision that where the Crown refuses consent a trial by judge alone cannot proceed but must be by jury.440 Consent was refused by the prosecution in New South Wales when Ivan
Milat, the man accused of the 'backpacker murders' elected trial by judge alone on the basis that a jury would be prejudiced against him because of media publicity.
Judicial review of this refusal by the Director of Public Prosecutions was then refused by the Supreme Court.441 On other occasions trial judges, who do not possess any veto power, have expressed concern about the idea that the trial of a major indictable offence may take place without a jury.442 In R v Marshall, the first murder trial in Australia to be conducted by a judge alone, the trial judge expressed
439 Hill, M. & Winkler, D., Jury Project Discusson Paper, The International Society for the Reform of Criminal Law, December 2000 at 21< http://www.isrcl.org/ > (3 February 2001). 440 Hon. E.M. Franklyn, a former judge of the Supreme Court of Western Australia. 441 M v DPP (Unreported NSWSC , Dunford J, 3 June 1996).
148 misgivings about shifting many important value judgments from jury to judge.443
Indeed he felt so strongly about it he recommended that the South Australian Juries
Act be amended so as to exclude trial by judge alone in trials for treason and murder.444 In his judgment White J said while there may be value in opting for trial by judge alone in complicated fraud and commercial cases even judges would have difficulty in putting to one side, in a case as serious as murder, the kind of prejudicial material which is often introduced into a voir dire.445 Furthermore, he said, the values of the community are so deeply involved in the many value-judgments which have to be made in the course of a trial that a trial without a jury on a charge of murder would be in danger of becoming a quite different legal process than it has been traditionally.446
One assumes then, that in general, throughout the community there is an appreciation of the fact that the most fair and just trial for all concerned will be a trial by judge and jury. Defence lawyers in states, like Queensland, that require a unanimous verdict also argue their task of securing an acquittal for their clients is easier where they have 12 jurors. It means they only have to persuade one juror to dissent and their job is done. Whereas with a judge they have only one person to persuade which makes their task a lot more difficult. Furthermore, many say there is probably a good argument that there is something inherently better in the decision of 12 jurors working together than a single judge's about any disputed facts. There is also the dictum of Deane J in Brown v The Queen :
442 R v Marshall (1986) 22 A Crim R 432. 443 Ibid 479. 444 Ibid. 445 Ibid 480.
149 the deep seated conviction of free men and women about the way in which justice
should be administered in criminal cases, namely that, regardless of the position of
the particular alleged offender, guilt or innocence of a serious offence should be
determined by a panel of ordinary and anonymous citizens, assembled as
representative of the general community at whose hands neither the powerful nor the
weak should expect or fear special or discriminatory treatment. 447
Nevertheless in the interests of justice Queensland should fall into line with the other states in Australia and offer trial by judge alone if requested by an accused. It does not matter if this provision is rarely evoked there should be an avenue available to counter any suggestion that a full range of remedies was not available to cure extreme prejudicial publicity.
5.8 CONCLUSION
Apart from the judicial directions to juries, the remedies referred to all come at a price either financial or non-financial and in some cases both. None of the remedies are particularly satisfactory or are able to undo the damage that has led to their application in the first place. For example, where there has to be a new trial because it has been necessary to discharge the jury the expenses can be substantial. A new trial can also increase the strain and hardship suffered by the accused who may be in custody. The remedies may also cause inconvenience and emotional upset to other parties involved, witnesses and jurors especially when a jury must be sequestered for part or all of the trial. In fact, the particular pressure imposed by jury sequestration
446 Ibid 482. 447Brown v The Queen (1986) 160 CLR 269.
150 'may be so arduous that the jury’s capacity to deliberate with the necessary dispassionate calm is also put at risk'.448
Similarly, a change of venue to locations away from the location of prejudicial publicity causes inconvenience and expense to all of those involved in the trial. It is also of negligible effect in cases where the crime has attracted national or international attention. Where a conviction must be quashed and a new trial ordered or, in extreme cases, permanently stayed due to prejudicial publicity, the public interest in the administration of justice is frustrated. The victim of the crime is left without having his or her suffering and outrage aired and without seeing retribution.
Nevertheless fairness to the accused and the integrity of the trial means these costs should be borne by the State in the interests of justice. Of course each case will turn upon its own facts. As has been noted by leading Western Australian criminal barrister Mark Trowell QC449 there will be cases where the publicity has been so prejudicial that it would deprive an accused of a fair trial. In that circumstance a suggestion might be that judges should be inclined to be more flexible and prepared to exercise their discretion in favour of an accused rather than placing their absolute belief that a strong direction to a jury will solve the problem. The argument by this thesis that there be a ban on the identification of a suspect before being charged in the interests of fairness would, if the Long & D'Arcy cases are any guide, reduce the number of applications made to the court to remedy the effects of prejudicial publicity as well as the resultant costs and other factors.
448 Chesterman M, ' OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt with in Australia and America' (1997) 45 American Journal of Comparative Law 109 at 128. 449 Mark Trowell QC, 'The media and the criminal law', paper presented to LAWASIA downunder 2005, Gold Coast, 23 March 2005.
151 6. ANALYSIS OF DATA
United States research, analysed in this chapter, supports the hypothesis of this thesis that jurors exposed to negative pre-trial publicity were significantly more likely to judge a defendant guilty compared to jurors exposed to no negative pre-trial publicity. This thesis in particular notes that pre-charge prejudicial publicity where the media is not constrained by sub judice contempt is especially damaging to an accused.
The first application in Australia of a case study methodology on the topic of prejudicial publicity was carried out by Chesterman, Chan and Hampton in New
South Wales. While a few broad empirical studies into the operation of criminal trial juries have been conducted in Australia,450 none of them has addressed specifically the impact of prejudicial publicity. Chesterman's study451 looked at 41 selected criminal trials held in NSW between mid–1997 and mid-2000. Jurors, judges and the principal counsel on both sides were asked to participate in structured interviews, conducted after the trial was concluded. The interviewees were asked about their impressions of how prejudicial media publicity associated with the trial might have affected the perceptions of the jurors and verdicts reached. They were also asked about a number of associated matters, such as what steps, if any, were taken within the trial process to prevent or mitigate any prejudice potentially arising from publicity. Independent research into the scale and nature of the media publicity
450 NSW Law Reform Commission, Empirical Studies – The Jury in a Criminal Trial (1986) (an in- house paper prepared by the NSW Law Reform Commission, referred to in its Report No.48, The Jury in a Criminal Trial, 1986, para. 1.14); M. Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration, 1994). 451 Chesterman M, Chan, J and Hampton, S Managing Prejudicial Publicity: An empirical study of criminal jury trials in News South Wales (February 2001).
152 associated with each trial was also carried out. The underlying aim was to complete a set of 41 case studies, from which insights into the effects of prejudicial publicity on criminal trial juries might be obtained.
The principal findings on the incidence of jury recall of pre-trial publicity were as follows:-
1. Jurors chiefly recalled media reports of the commission of the alleged
offence. They less frequently recalled reports of the arrest of the
accused. They recalled reports of committal hearings or other pre-trial
proceedings even less frequently. Recall of pre-trial specific publicity
in other categories was piecemeal: for example, a prominent 'one-off'
media story about an accused, might, but not necessarily would, be
recalled. Jury recall was most frequently of general features of the
relevant publicity rather than of precise details. In 53 per cent of the
trials in which some form of pre-trial publicity was recalled by at least
one juror, the publicity was discussed in the jury room. Jurors were
frequently aware of broad themes canvassed in generic publicity
occurring pre-trial, but did not usually recall particular items of such
publicity.452
2. However, jurors were more likely to recall pre-trial publicity – for
example, reports of pre-trial proceedings – in three situations. These
were when:
452 Ibid, xiv para 1.
153 (a) it related to accused people who were independently well-known
in the community;
(b) it related to offences committed in the area where the jurors lived;
or
(c) they did not encounter it until after the trial began. Other familiar
explanations for pre-trial publicity being recalled – for example, that it
appeared unusually close to the start of the trial or was especially
prominent – were also discernible.453
These findings seem to suggest that of particular relevance to jury recall is the extent to which the case has captured public attention, a good recent example being the
Northern Territory murder of British traveller Peter Falconio. Mr Falconio and his partner Joanne Lees became household names throughout Australia since they were terrorized, and Mr Falconio abducted and allegedly murdered, by a gunman who tricked them into stopping their car on an outback highway. Since then it has been widely reported Bradley John Murdoch, a convicted criminal, has been arrested and charged with Falconio’s murder even though (at the time of writing) no body has been found. He was arrested and shown on national television leaving a South
Australian courtroom where he had been acquitted of the rape of a 12 year old girl. It was also reported Murdoch had convictions for other violent sexual crimes. His committal hearing was held in Darwin during May 2004 attracting 80 accredited journalists from all over the world. The media attention was repeated at his subsequent trial in December 2005. Murdoch was subsequently found guilty
453 ibid, p.xiv paras 2-3.
154 receiving a mandatory life sentence. His lawyers have indicated they will appeal the decision.
6.1 INFLUENCE ON JURORS
According to the Chesterman study, in the 38 trials which were attended by specific publicity, very few of the respondent jurors considered that this publicity may have influenced them.454 The equivalent figures for generic publicity were slightly higher.
Many of their findings as to the incidence of influence on jurors the authors admit were inevitably based on subjective evaluations.455 Interestingly however, the study reported that in three out of 40 trials considered by it, it seemed likely that publicity was determinative of the verdict. In a further seven trials there was the possibility that publicity was determinative of the verdict. In an additional 11 cases it was considered that publicity was likely to have influenced individual jurors, with this being a possibility in a further five cases. Thus in 26 out of 40 cases studied, pre-trial publicity had an effect, to larger and lesser degrees.456
Similar conclusions were drawn by a New Zealand Law Commission paper entitled
Juries in Criminal Trials – Part Two.457 The authors studied 48 trials throughout
New Zealand, and asked potential jurors to complete a written questionnaire, and then with the permission of the trial judge interviewed some of the empanelled jurors after the conclusion of the trial. Like the NSW study the New Zealand research
454 Ibid, p. xv. 455 Ibid, p.xvi. 456 Ibid, p.xvii, para.5. 457 Young, W Cameron, N & Tinsley,Y., Juries in Criminal Trials Part Two: A Summary of the Research Findings, Preliminary Paper 37-Volume 2, November 1999, New Zealand Law Commission.
155 suggested that the impact of pre-trial publicity was minimal. However, the authors acknowledged the limitation of this conclusion. These included the following:
• The research was primarily reliant on the self-report of jurors;
• It was possible that jurors deliberately underplayed the influence of certain
factors on their behaviour because they were aware that it was contrary to the
directions of the trial judge;
• There was a problem with the passage of time between the trial and the
interview;
• It was possible that jurors who agreed to be interviewed did so for reasons
which may have biased their responses and made them unrepresentative of
the jurors as a whole;
• It was possible that knowledge that the research was taking place may
occasionally have influenced the behaviour of jurors themselves.458
In addition to these general limitations, the authors specifically acknowledge that in respect of pre-trial publicity jurors would be reluctant to admit that they had been influenced by such publicity. For example:
They will often be unaware of any biases or preconceptions arising from such
publicity or, if they are aware of them, believe that they have successfully put them
to one side. 459
This comment highlights the weakness in not only the above studies but also other jury research methodologies in that there is no accurate way of assessing the
458 Ibid 5, paras 1.12 –1.16. 459 Ibid 60, para 7.49.
156 psychological component of jurors' responses. For example: have the jurors interviewed made a genuine effort to answer fully and honestly? How reliable are their accounts of whether they were influenced consciously or sub-consciously by prejudicial publicity? How do they know if they were influenced or not? Further, where a small percentage of jurors have admitted being influenced by publicity it is highly unlikely they would have admitted deciding guilt or innocence because of it.
Also, in the case of Chesterman's study the survey was limited to only 41 criminal trials in New South Wales. It could be argued that it would be wrong to come to any conclusion on that material, given the statistical base was so small. So one must be cautious before accepting these surveys as offering more than just a limited insight into the impact of publicity on jurors.
As the Law Reform Commission of Western Australia460 has pointed out, while
Chesterman's study is a very useful addition to the literature in that it is based on real-life experience of jury trials rather than on simulations, its strength is also a significant limitation. That is because the study was undertaken in the context of restricted publishing as a direct result of existing contempt law. There is simply no way of knowing the extent to which unsafe verdicts were avoided as the result of the application and presence of contempt law. In other words, it is impossible to know from this study how many more unsafe verdicts there would be if it were not for contempt law. The foregoing tends to suggest that there is a need for more independent research using different methodologies to enhance what has already been done.
460 Law Reform Commission of Western Australia, Report on Review of the Law of Contempt, Project No 93, June 2003, .25.
157 Notwithstanding the legal differences between Australia and the USA, the experience of US researchers into the effects of pre trial publicity is at variance with Australian research. In any event the basic social and psychological principle applies across countries even those countries like Australia that use Contempt restrictions to prevent prejudice. A recent meta-analytic review of the effects of pre trial publicity on juror verdicts in the US supported the hypothesis that subjects exposed to negative pre trial publicity were significantly more likely to judge the defendant guilty compared to subjects exposed to less or no negative pre trial publicity.461 The purpose of meta- analysis is to identify any underlying pattern across studies, damping the 'noise' of extraneous error components among individual studies. In this instance the meta- analysis of 44 empirical tests representing 5,755 subjects found that 23 supported the hypothesis, 20 reported no significant difference and one produced a significant result in the opposite direction.462 It was interesting that cases involving murder or sexual abuse, with one exception, consistently generated greater pre trial publicity effect than other crimes.463 The exception was a survey that showed general attitudes towards drug crimes, created in part by media accounts, were correlated with prejudice toward defendants who were charged with drug distribution.464 This finding is consistent with one of the four categories of prejudice recognised in
American law described as generic prejudice (the others being interest, specific and conformity prejudice).465
461 Nancy Mehrkens Steblay, Jasmina Besirevic, Solomon M. Fulero & Belia Jimenez-Lorente, 'The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review', Law and Human Behavior, (1999) Vol. 23, No. 2 at 219. 462 Ibid 220. 463 Ibid, 227. 464 Moran, G., & Cutler, B., 'The prejudicial impact of pretrial publicity' (1991) Journal of Applied Social Psychology 21 at 345 – 352. 465 Vidmar, N., 'Case Studies of Pre-and Midtrial Prejudice in Criminal and Civil Litigation'(2002) Law and Human Behavior Vol. 26, No. 1 at 73.
158 Generic prejudice involves the transferal of pre-existing prejudicial attitudes, beliefs or stereotypes about categories of persons. For example, racial or ethnic prejudice is the most commonly recognised form of generic prejudice. In Australia the apposite case would be Attorney General for NSW v John Fairfax Publications Pty Ltd466 where an issue was potential pre trial prejudice against a Vietnamese defendant who had been identified in The Sydney Morning Herald on two occasions as a drug boss.
Over an extended period of time there had been many other media articles identifying Vietnamese immigrants as involved in the illegal drug trade in Sydney.
Consequently, for some people a Vietnamese name alone created a belief that someone with a Vietnamese name charged with a drug offence was likely to be guilty. In other words, the defendant was judged by his apparent group membership and the activities perceived to be associated with that membership. Generic prejudice can also be directed against persons accused of certain crimes. In a sample of 25 actual cases, prospective Canadian jurors were asked in court if they could be impartial in deciding charges involving sexual abuse of children.467 The percentage of persons stating that they could not be impartial ranged from 11 to 59 per cent.
Similar perceived community prejudice against persons accused of sexual abuse of children has been observed by defence lawyers in Australia. However, even though a juror may have a bias against defendants charged with certain crimes, unless the bias is likely to be translated into behavioural prejudice against a defendant it is legally irrelevant. On the other hand although generic prejudices are different from specific prejudices, they can have major consequences for juror behavior and for the assessment of juror impartiality.
466 (1999) NSWSC 318.
159 Conformity prejudice exists when the juror perceives there is such strong community reaction in favour of a particular outcome of a trial that he or she is likely to be influenced in reaching a verdict consistent with the perceived community feelings rather than impartial evaluation of the trial evidence.468 Vidmar469 quotes the
Oklahoma bombing trial where the trial judge in explaining his decision for a change of venue said that 'the entire state had become a unified community, sharing the emotional trauma of those who had become directly victimised'.470 Judge Matsch concluded that identification with a community point of view can result in jurors feeling 'a sense of obligation to reach a result which will find general acceptance in the relevant audience'.471 Parallels in Queensland could be made with the Childers backpackers' fire which invoked a strong community reaction against the man accused of starting the fire in which 15 young people were burnt to death.
Interest prejudice involves prejudices arising from the prospective juror having a direct or indirect interest in the outcome of a trial. This interest may be reflected in familial, social or economic relationships with one of the parties to the litigation or trial. A relative of the victim or the accused in a criminal case is the most typical example of interest prejudice. This type of person would be more easily weeded out by some form of questioning by the trial judge when empanelling jurors than perhaps the other forms of prejudice held by jurors.
Specific prejudice exists when the juror holds attitudes or beliefs about specific issues in the case at trial which prevent the juror from rendering a verdict with an
467 Vidmar, N., 'Generic prejudice and the presumption of guilt in sex abuse trials' (1997) Law and Human Behaviour Vol. 21 at 5-26. 468 Vidmar, N., 'Case Studies of Pre-and Midtrial Prejudice in Criminal and Civil Litigation' (2002) Law and Human Behavior Vol.26 No. 1 at 82. 469 Ibid, 73. 470 U.S. v McVeigh (1997) 955 F. Supp.1281.
160 impartial mind. The beliefs and attitudes may involve factual knowledge about the case that would be ruled inadmissible, such as a prior criminal record, or a confession.
It goes without saying that more than one form of potential prejudice may be present in a particular case. For example, in Long's case media publicity presented extra- legal facts that he had been accused of arson in the past. Obviously all four types of prejudice might be extant in the community and their combined effect may be greater than the sum of the individual parts. The framework presented here is simply a device for helping to recognise the sources and problems of pre trial publicity.
6.2 EVIDENTIAL PROBLEMS REGARDING PREJUDICIAL PUBLICITY
One of the difficulties in persuading judges that prejudicial publicity carries with it the risk of an unfair trial is that the judicial authorities do not accept evidence that supports this argument. This is peculiar in view of the fact that in all other areas of law evidence is always required for a party to influence a court. For instance, courts do not seem to be persuaded by witnesses attesting to community bias towards an accused as in Long’s case and Murdoch where Street CJ stated:
There must be a sound basis made out on a prima facie footing to anticipate the probability of
prejudice on the part of an individual juror. 472
471 U.S. V McVeigh (1996) 918 F.Supp. 1473. 472 (1987) 37 A Crim R 118 at 126.
161 In Long,473 an affidavit by a police officer testifying to the difficulty of empanelling an impartial jury at a town closest to the crime scene (Bundaberg) was rejected by a majority of Queensland Appeal Court judges hearing a submission for a change of venue from Bundaberg to Brisbane. Williams JA was especially critical of the officer’s failure to scientifically evaluate the conclusions of his deposition. Also in R v Stuart & Finch474 an unsuccessful attempt was made to use newspaper articles as the basis of a foundation upon which prospective jurors could be challenged for cause. Nevertheless it is possible that well-structured and well-conducted surveys of potential jurors could assist criminal trial courts to ensure a fair trial especially in cases where the offence or the accused are well known to the community. This is not especially radical as courts already use the results of survey type evidence all the time and without objection. Whether it be civil or criminal much of what passes to accredit an expert is their knowledge of material that has been gathered over time, these long term studies of numerous cases being akin to surveys. Furthermore, the opinions offered by experts are often based upon not just their experience but what they have learned from the studies of their colleagues. It could therefore be beneficial for counsel to commission a professional opinion pollster as was done in Glennon’s
475case before the Supreme Court of Victoria. There is also nothing to prevent a trial judge from commissioning a survey where the interests of justice make that course necessary.
In New South Wales the decision of Street CJ in R v Damic476 is of interest. It was decided a judge presiding at a criminal trial has the power, regardless of the attitude
473 R v Long (1991) QCA 113 (Williams JA during argument). 474 [1974] Qd. R 297. 475 Glennon v R (Unreported Court of Criminal Appeal Victoria, McGarvie and Nathan JJ; Southwell J dissenting. 1990)
162 of the parties, to call a witness in the interests of justice. Further the judge may either elicit evidence in chief or invite one or other of the parties to assist by eliciting the evidence in chief. Subsequently, the High Court in R v Apostilides477 endorsed the possibility of a trial judge calling a person to give evidence where 'the most exceptional circumstances' warranted such a course. In Glennon a random poll was conducted at the respondent’s request by Irving Saulwick and Associates. The poll indicated that some 33 to 45 per cent of the population of Melbourne had heard of the respondent’s case in some form or another. Evidence of this poll was led before
Crockett J who said of it:
This poll and how it should be interpreted, I think it is correct to say, in the end were
treated as virtually being the determinant of the outcome of the present application.
478
While the High Court rejected the evidential weight of the poll because no respondent to the survey volunteered knowledge of a previous conviction (my emphasis) of the respondent, nevertheless a proper formulation of questions could overcome this weakness.
However, Barr J in Attorney General for the State of NSW v John Fairfax
Publications Pty Limited479 was critical of two surveys designed to test the ability of members of the public to remember the details of an allegedly contemptuous publication. The case involved a series of articles in The Sydney Morning Herald five months before the trial of an alleged drug dealer charged with the importation of a
476 (1982) 2 NSWLR 750 at 754-763. 477 (1984) 53 ALR 445 at 455. 478 Glennon v R (1990) Court of Criminal Appeal Victoria.
163 substantial amount of an illegal drug. The Attorney General commenced an action for a declaration that the newspaper was guilty of contempt in that it published matter that had a tendency to interfere with the administration of justice in the accused’s forthcoming trial. The defendant newspaper’s principal submission was that there was a reasonable doubt whether any juror would remember the articles and connect them with the accused. The defendant relied on the expert opinions of two witnesses, Dr Kipling David Williams, Senior Lecturer in the School of Psychology,
University of New South Wales and Professor Neil (Joseph) Vidmar, Professor of
Law at Duke University School of Law, North Carolina. Dr Williams said it was highly unlikely that the articles in question and the photographs within them would be remembered by jurors in the Sydney jury district about five months after their publication. He also thought it highly unlikely that, five months after publication, the articles complained of could have influenced jurors.480
This analysis was rejected by Barr J who said it lacked methodical or mathematical integrity.
Furthermore, the judge rejected Dr Williams’ opinion that the persistence of any memory or influence after five months approaches zero. It appeared to the judge that this opinion was not based upon any mathematical comparison but upon Dr
Williams’s knowledge and expertise, and of the literature on memory and forgetting.481 The survey also suffered, in the eyes of the judge, because the formula which is used to convert the probability that any single person may remember to the probability that any person out of 12 randomly selected persons may remember.482
479 (1999) NSWSC 318. 480 Ibid para. 27. 481 Ibid para.34 482 Ibid para.41.
164 Dr Williams also agreed that the surveys he conducted made no attempt to replicate a criminal trial and were a poor substitute for a trial.483 This is fair comment.
At a trial, which may last several days, there is a continual and repeated process in which information is presented which may stir the memory. For example, jurors will see the accused’s name printed in court lists, on notice boards, in the media and probably in documents tendered at the trial. They will hear the accused’s name repeated throughout the trial. They will hear other information, such as nicknames and other attributes of the accused which may become relevant. So a name or face which provokes an uncertain memory at first may, when repeated or presented with other relevant information, revive the memory. On the other hand, the presentation of a question once only in a survey is much more likely to bring about a negative response.
Secondly, participants in a survey are questioned individually. Special care is also taken to prevent the memory of any participant influencing that of any other. Yet that is precisely the process that is likely to go on during the deliberations of the members of a jury at a trial. It could mean that a dim memory of one juror may spark or be sparked by the memory of another juror.
Barr J was equally critical of Professor Vidmar’s surveys designed to test the ability of people to remember the details of the publication complained of. In Vidmar’s survey a number of readers of the Sydney Morning Herald were asked to attend at the offices of a Sydney marketing research organisation.484 They were divided randomly into four groups. They were then given a photocopy edition of the newspapers in
483 Ibid para.42. 484 Ibid para.51.
165 which the offending articles were published. The participants were asked to read the newspaper or newspaper as they would ordinarily have read them. After having done so, each participant was asked to complete a written questionnaire. They were paid a sum of money and informed that the researchers might telephone them to ask additional questions after the analysis of the data.
About 14 days later, those from the marketing research organisation telephone each participant and asked a series of questions designed to determine the extent to which each participant recalled the names of the accused and any connection made between those names and other names which appeared in the articles they had been asked to read. In short, the results, led Professor Vidmar to conclude that as a matter of practical reality the likelihood was very small that the articles complained of had adverse effects on the belief or attitude of persons exposed to the articles toward the accused. This was despite the fact more than a third of the survey respondents in one group recognised the accused as a person connected with drugs.485 Furthermore, Barr
J said there was no attempt to quantify and compare the likely loss of memory after two weeks with the loss after five months or by any other means to compare the degree of memory loss likely to have been experienced after each of those two periods of time.
However, his principal reason for not giving weight to the survey results lay in the difference between the conditions of the survey and the conditions that would prevail at a trial in NSW. Firstly, the survey was carried out without any warning, other than an indication two weeks earlier that participants might be asked questions later on.
485 Ibid para.103.
166 So there was no possibility that the memories of participants might be stimulated by repetition of relevant information between the two stages of the survey. On the other hand, members of a jury know the name of the accused in advance. They are told at the beginning of the trial what the charges are and the facts the Crown proposes to prove. During the trial that follows they repeatedly hear, see and read things which may stimulate the memory.486
In the final analysis, Barr J ruled that he was satisfied beyond a reasonable doubt that as a matter of practical reality the articles had the tendency to interfere with the due course of justice at the accused’s trial notwithstanding that it was not due to take place for a further five months.487According to some commentators the legacy of
Barr J's decision has seemed to be a disincentive to use survey evidence because of the logistical difficulties in replicating participant performance and juror experience.488 Any future survey will need to build in a significant number of factors which will equate participant performance to the conditions in which jurors customarily undertake their tasks in order for the expert interpretation of the survey results to be accorded any substantial probative value in assisting the contention that the publicity prompting the charges either was or was not likely to have the relevant tendency to interfere with the administration of justice. However, it should not be beyond the wisdom the judiciary or academics to draw up guidelines in formulating surveys that will assist the court in determining the effects of prejudicial pre trial publicity. For instance, one commentator, Hugh Selby, has distilled from an analysis
486 Ibid para. 43. 487 Ibid para.121. 488 Ian Freckleton & Hugh Selby, Expert Evidence: Law, Practice, Procedure and Advocacy,2nd edition 2002 LBC at 133.
167 of Federal court cases relating to survey evidence a list of reliability criteria relevant to pre-trial surveys:489
1. A representative cross section of the public must be interviewed.
2. Surveys must be large enough to be of relevance;
3. Full disclosure of how many surveys are carried out, how they were
conducted and how many people were involved must be made;
4. Leading questions must not be posed;
5. The full answers given by all interviewers must be recorded;
6. The instructions given to interviewers must be made known;
7. Interviewers should be experienced;
8. Interviewers should not depart from prescribed procedures;
9. Evidence of interviewee's spontaneous or initial responses before any
conditioning process can operate are particularly valuable.490
Selby491 gives an example of the importance of the application of the rules relating to expert evidence in Connell's case.492 A social psychologist, Professor Durkin, sought to lead evidence that attitudes created by media publicity would be remembered long after the details upon which they are based have begun to fade and will affect the
489 Selby Hugh 'The Pre Trial Use of Survey Evidence by Trial Judges', paper presented at the 28th Australian Legal Convention, Hobart, September 26-30 1993 at 137. 490 For authorities supporting these propositions see, Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158, 88 ALR 217; Imperial Group plc v Philip Morris Ltd (1984) RPC 293 at 302-3; Interlego AG v Croner Trading Pty Ltd (1991) 102 ALR 379; SGIC v GIO (1991) 101 ALR 259; Payton & Co Ltd v Snelling Lampard & Co Ltd (1990) 17 RPC 628; Reckitt & Coleman Products Ltd v Borden Inc (1990) 1 WLR 491 at 509; Shoshana Pty Ltd v 10th Cantanae Pty Ltd (1987) 79 ALR 279 and Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555 at 604ff. 491 Ibid Note 300. 492 R v Connell & ors, (Unreported, Supreme Court of Western Australia, Seaman J, 26 February 1993) 60.
168 manner in which jurors will process the material put before them at trial.493 But
Seaman J rejected the professor's expertise because the professor had no personal experience of the work of juries and his research involved the reading of mainly
United States literature. He had no publication on the interrelationship between prejudicial media publicity and guilt or innocence.494 His Honour also noted that the literature on which the professor relied was based on a relatively small number of experiments and many of the researchers said their results should be treated with caution and that fuller research was required.495 Furthermore there was material which was inconsistent with the professor's opinion. His Honour quoted from an
American study that:
Publicity does not wreak its evil effects upon juries to the degree commonly believed
and that the study supports the conviction that the jury is an effective trier of the
facts laid before it in the court room and that trial procedures do indeed operate as
they are supposed to. 496
These remarks have been echoed by Australian judges from an Australian study that has come to a similar conclusion.497 These studies are not, of course, determinative of the issue and any expert assistance that can be given to the court to make the process fairer if not more efficient, should surely be encouraged. As Selby498 notes, experience will bring an enhanced capacity to design surveys and to interpret those survey results for the appropriate response in trial management and jury instructions.
493 Ibid 22. 494 Ibid 24. 495 Ibid 25. 496 Ibid 497 Chesterman, M, Chan, J and Hampton, S., Managing Prejudicial Publicity: An empirical study of criminal jury trials in New South Wales ,February 2001.
169 It must be made clear the use of these surveys would be directed to the few cases where there has been such public attention given to the crime and the defendant that the usual directions to the jury are manifestly inadequate to assure confidence in a fair trial. There is no suggestion surveys would be commissioned on an ad hoc basis or simply as a delaying tactic to frustrate the due administration of justice. It would be a useful experience if such a survey was commissioned to consider especially the effects of prejudicial pre-trial publicity before charge
6.3 MEMORY
As noted above , memory plays an important part in jurors recall of prejudicial publicity. Therefore it is pertinent to briefly note the scientific basis on how memory of potentially inadmissible material may infect a juror's recall. For example,
American psychologist Daniel Schacter notes the danger of what he describes as
'hindsight bias' where people seem almost driven to reconstruct the past to fit what they know in the present.499 He puts forward the familiar scenario of jurors’ being instructed to disregard inadmissible evidence . Numerous studies have shown that mock jurors’ placed in such a situation cannot disregard inadmissible evidence, even in the face of explicit instructions to ignore it; they are more likely to convict than are jurors’ who never heard the inadmissible evidence.500 According to Schacter, the same holds true for incriminating pre-trial publicity that jurors’ are instructed to
498 Hugh Selby, 'The Pre Trial Use of Survey Evidence by Trial Judges' , paper presented at the 28th Australian Legal Convention,Hobart, September 26-30 1993 at 142. 499 Schacter Daniel , The Seven Sins of Memory: How the Mind Forgets and Remembers, Houghton Mifflin Company, Boston, New York, 2001, at 147. 500 Hawkins, S.A., and Hastie, R., 'Hindsight: Biased judgments of past events after the outcomes are known', Psychological Bulletin, 1990 107, 311-27.
170 ignore. Once the evidence enters the memories of jurors’, they are biased to feel that they 'knew all along' that the defendant was guilty.
Psychologists usually divide memory into three types: sensory, short-term, and long- term.501 Sensory memory does not impact upon this thesis so I shall only include reference to short-term and long-term memory.
6.3.1 Short-term memory
Short-term memory contains the contents of your conscious awareness; what you are actively thinking about at any particular time. Common examples include if you are trying to retain a telephone number you have just looked up or if a tune keeps playing itself in your mind psychologists say you are processing this information through short-term memory. According to Wortman, Loftus & Marshall502 short-term memory is not just a passive storehouse of data rather it is a dynamic arena for processing information for thinking, reasoning and solving problems. That is why some psychologists prefer to call it active memory or working memory. It is believed this short-term, working memory system holds only a limited amount of information at any one time, and its contents fade in about 15-20 seconds if they are not actively renewed.503
6.3.2 Long-term memory
Long-term memory in contrast, can store things indefinitely without active effort. It can be thought of as a library of information, and its capacity is believed to be limitless. It is this aspect of memory that is most relevant to my thesis especially in
501 Wortman C, Loftus E and Marshall M, Psychology, 4th ed, McGraw-Hill, New York ,1992 at 189. 502 Ibid 190.
171 view of the fact that judges believe the passage of time can help dim the memory of the recipients of prejudicial pre-trial publicity. The way information enters long-term memory is not completely understood. The process depends partly on the amount of time we rehearse things: the longer the rehearsal, the more likely is long-term storage. But even more important is the type of rehearsal. If we simply repeat something to ourselves without giving it thought (as when we rehearse a telephone number), that information seldom becomes part of our long-term knowledge. In contrast, if we take a new piece of information and mentally do something with it – form an image of it, apply it to a problem, relate it to other things – it is more likely to be deposited in long-term storage.
6.3.3 Retrieval from long-term memory
Psychologists have studied two kinds of retrieval from long-term storage: recognition and recall.504 Recognition, involves deciding whether you have ever encountered a particular stimulus before. Identifying a suspect in a police line-up is an example of recognition. Recall, in contrast, entails retrieving specific pieces of information, usually guided by retrieval cues. To ask a witness to a robbery 'What did the thief look like? Do you remember what he was wearing'? is to demand that the person recall. The witness must search through memory and come up with a description. It could be therefore in the case of judicial directions instructing jurors to disregard pre- trial publicity, individual jurors could then be sub-consciously or inadvertently encouraged to search their memory and remember what they had read or heard about the accused in the media. In the case of Long, for instance, they may recall it had been written in the media prior to his being charged that he had been convicted or
503 Waldrop, M.M., ‘The workings of working memory’, Science (1987) 237(4822), 1564-1567.
172 suspected of arson before thereby achieving the opposite of what judicial directions are supposed to achieve.
6.4 US PRE-TRIAL PUBLICITY RESEARCH
It is often said the clearest divergence between Australia and the United States in sub judice contempt is the leeway given to the media in the United States because of the
First Amendment to the US Constitution guaranteeing freedom of speech.505 But it is my contention that in the pre-charge stage Australian and US media are almost on the same footing. That is the media in both countries are free to publish what they like about a suspect. Therefore US research about the effects of pre-trial publicity has some utility in Australia notwithstanding the later differences. The US, more than any other country, has provided a wide body of research concerning the effects of pre trial publicity over the past 40 years. Recently the leading US-based psychology and law journal Law and Human Behaviour published a special issue on the field of pre trial publicity research focusing on its past and future.506 As with Australian research in this area, American research has been driven by the tension between freedom of speech and the rights of an accused to a fair trial.
This research has attempted to address the usual specific questions:
(a) Does pre trial publicity affect juror verdicts?
(b) If there are pre trial publicity effects on verdicts, what is the theoretical
underpinning of such effects? and
504 Brown, J.(ed) Recall and Recognition, Wiley, New York 1976; Adams, J.A. ‘Learning and Memory: An Introduction’, Homewood, IL, Dorsey Press, (1980). 505 Michael Chesterman, Freedom of Speech in Australian Law: A delicate plant, 1st ed., Ashgate,Dartmouth, 2000 at 279.
173 (c) What remedies are appropriate to ameliorate pre trial publicity effects?
According to a psychologist who has worked extensively in the area of pre trial publicity and its effects, a number of conclusions can be drawn from psychologists who have filed affidavits in pre trial publicity cases.507
1. Pre trial publicity has damaging effects on potential jurors; jurors exposed
to pre trial publicity render guilty verdicts more often than those not so
exposed. This has been found both with simulated jurors, and in real
cases.508
2. The voir dire process, even if extended and attorney-conducted, does not
ameliorate the deleterious effects of pre trial publicity.509
3. Simply asking jurors in voir dire who have been exposed to pre trial
publicity 'if they can lie that aside and render a fair and impartial verdict
anyway' is not effective either. Jurors who say this are still more likely to
vote 'guilty' if they have been exposed to pre trial publicity.510
506 Law and Human Behavior, (2002) Vol.26, No.1 507 Solomon M. Fulero, 'Afterword: The Past, Present and Future of Applied Pretrial Publicity Research', (2002) Law and Human Behavior, Vol. 26, No 1 at 127. 508 Constantini, E & King ,J 'The partial juror: Correlates and causes of prejudgment', (1980-81) Law and Society Review 15, 9-40; Dexter, H.R., Cutler, B.R. & Moran, G., 'A test of voir dire as a remedy for the prejudicial effects of pretrial publicity', (1992) Journal of Applied Social Psychology 22 at 819-832; Greene E.L., and Loftus, E. F., 'What's new in the news? The influence of well-publicized news events on psychological research and courtroom trials'(1984), Basic and Applied Social Psychology 5 at 211-221; Greene , E.L. and Wade, R, 'Of private talk and public print: General pretrial publicity and juror decision-making', (1987) Applied Cognitive Psychology 1 at 1-13; Hoiberg, B., & Stires, L., 'The effect of several types of pretrial publicity on the guilt attributions of simulated jurors', ( 1973) Journal of Applied Social Psychology 3 at 267-271. 509 Kerr, N.L., Kramer, G.P., Carroll, J.S., & Alfini, J.J.,'On the effectiveness of voir dire in criminal cases with prejudicial pretrial publicity: An empirical study', (1991) The American University Law Review, 40 at 665-701; Padawer-Singer, A., & Barton, A., 'Free press, fair trial. In R. Simon (Ed.), (1975) The jury system: A critical analysis; Riley, S. G., 'Pretrial publicity: A field study', (1973), Journalism Quarterly 50 at 17-23. 510 Sue, S., Smith, R., & Pedroza, G, 'Biasing effect of pretrial publicity on judicial decisions' (1974) Journal of Criminal Justice 2 at 163-171.
174 4. A continuance (i.e. delaying the trial) is of limited value because research
indicates that while the passage of time may decrease recall of factual
evidence, it does not dampen juror's recall of emotionally biasing
information. In addition, fresh publicity at the later time brings back
recall.511
5. The effect of pre trial publicity leads to a memory for pre trial events and
their link to trial judgments of evidence; attributions and inferences about
a defendant's character and evidentiary weighting and plausibility.512
The collected research also concludes there are effective remedies in cases where pre trial publicity has intruded. In particular they draw on recommendations by the
American Bar Association (ABA). They include:
9 (a) Imported Jurors: Prospective jurors can be imported to the venue from
another county 'whenever it is determined that potentially prejudicial news
coverage of a given criminal matter has been intense and has been
concentrated primarily in a given locality in a state.513
(b) Change of Venue: According to ABA Standard 8-3.3(c): 'A motion for
change of venue or continuance shall be granted whenever it is determined
that, because of the dissemination of potentially prejudicial material, there is
a substantial likelihood that, in the absence of such relief, a fair trial by an
511 Otto, A.L., Penrod, S.D., & Dexter, H.R., 'The biasing impact of pretrial publicity on juror judgments, (1994), Law and Human Behavior 18 at 453-470. 512 Kovera, M.B., 'The Effects of General Pretrial Publicity on Juror Decisions: An examination of Moderators and Mediating Mechanisms', (2002), Law and Human Behavior 26 at 43; Linz, D., and Penrod, S., 'Exploring the First and Sixth Amendments: Pretrial publicity and jury decision-making'
175 impartial jury cannot be had. This determination may be based on such
evidence as qualified public opinion surveys or opinion testimony offered by
individuals, or on the court's own evaluation of the nature, frequency, and
timing of the material involved. A showing of actual prejudice shall not be
required.
In the early 1960's, the ABA established a series of six advisory committees to formulate minimum standards for the administration of criminal justice. One of these was the Advisory Committee on Fair Trial and Free Press. Its origin was spurred in part by the Warren Commission's Report on the assassination of President Kennedy.
The Commission had concluded that: 'the experience in Dallas was a dramatic affirmation of the need for steps to bring about a proper balance between the right of the public to be kept informed and the right of the individual to a fair and impartial trial'.514
The standards were eventually passed by the ABA in 1968. They are divided into four parts, covering the conduct of lawyers, law enforcement officers, judicial officers as well as the use of the contempt power by judges. The first standard outlines the duty of a lawyer not to release information in connection with criminal litigation in which he is associated if there is a reasonable likelihood that such
(1992) in D.Kagehiro & W.Laufer (eds.), Handbook of Psychology and Law, Springer-Verlag ,New York at 3-20. 513 American Bar Association, 'Fair Trial and Free Press' (1978) Standard 8-3.5. 514 Warren Report on the assassination of President John F. Kennedy,Washington, US Govt. Print. Off. (1964) at 99.
176 dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.515
The content of the material prosecutors and defence lawyers should not release included:
• Prior criminal records;
• Any confessions or admissions by the defendant or the refusal or failure of
the defendant to make any statement;
• the defendant's refusal to sit for any examination or test;
• the identity or credibility of any prospective witnesses apart from the identity
of the victim if it is not otherwise prohibited by law;
• the possibility of a plea of guilty to the offence charged or a lesser offence;
and
• the defendant's guilt or innocence or other matters relating to the merits of
the case.
The second part focused on standards for law enforcement officers as judicial employees. Here, the recommendation was that the same content restrictions should be made applicable to law enforcement officers and judicial employees.
The most controversial of the standards relates to recommendations regarding the conduct of judicial proceedings in criminal cases. It was recommended that courts adopt the following rule:
515 Linz, D., & Penrod, S., 'Exploring the First and Sixth Amendments: Pretrial publicity and jury decision-making' in D. Kagehiro & W. Laufer (eds.) (1992), Handbook of Psychology and Law at 3- 20.
177
In any preliminary hearing, bail hearing, or other pre trial hearing in a criminal case,
including a motion to suppress evidence, the defendant may move that all or part of
the hearing be held in chambers or otherwise closed to the public on the ground that
dissemination of evidence or argument adduced at the hearing may disclose matters
that will be admissible at the trial and is therefore likely to interfere with his right to
a fair trial by an impartial jury.516
On its face this recommendation would seem to conflict with the principle of open justice that 'justice should not only be done but should be seen to be done'517 especially if 'in chambers' means the media are excluded.
The third ABA standard related to the remedy of change of venue. The standards also focus on jury selection in cases involving pre trial publicity. There is a recommendation for individual voir dire outside the presence of other prospective jurors. This is important because research has shown potential jurors are influenced by a desire to get the 'right' answer and find approval from the judge and be in the majority.518 As one commentator noted:
prospective jurors observe what happens to those that are not sufficiently
uninformed: the judge asks them to leave; they have failed the test as fair and
impartial jurors. 519
516 Solomon M. Fulero; 'Afterword: The Past, Present, and Future of Applied Pretrial Publicity Research', (2002) Law and Human Behavior 26, No.1., at 130. 517 R v Sussex Justices; Es parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart. 518 Broeder, D.W., ' The University of Chicago Project', (1959) Nebraska Law Review 38 at 748.
178 The fact that fewer jurors admit to possible bias as the voir dire questioning progresses suggests that potential jurors learn from their colleagues’ answers, the
'right' answers to the voir dire questions.
The final section focuses on the use by judges of their contempt power against persons who disseminate information in contravention of the standards. Judges are encouraged to use this power but 'with considerable caution'.520
In summary, given that these standards were issued in 1966, before the development of the now extensive empirical literature in the pre trial publicity area they are remarkably prescient and consistent with what US psychology and law researchers know today. According to US psychologist Solomon Fulero it may be time to resurrect these recommendations and to incorporate them into current attempts to shape the law in the pre trial publicity area.521 In terms of my thesis I would go one step further and recommend the recommendations also consider the banning of the identification of a suspect before he or she has been charged.
6.5 MEDIA ETHICS
This heading relates to answering a question that may be asked: ‘Why bother with statutory prohibitions on naming a suspect before being charged why not just
519 Bronson, E.J., 'The effectiveness of voir dire in discovering prejudice in high publicity cases: An archival study of the mitigation effect'(1989) Discussion paper series No.89-1, California State University, Chico, at 29. 520 American Bar Association,'Fair Trial and Free Press' ( 1978) Standard 4. 521 Fulero Solomon M., 'Afterword: The Past, Present and Future of Applied Pretrial Publicity Research', Law and Human Behavior (2002) Vol.26. No.1 at 131.
179 encourage the media to include it in their codes of conduct?’ As discussed below this does not appear to be a reasonable prospect.
Often times judicial officers appeal to the media when they are reporting on sensational cases to exercise restraint and discretion in relation to prejudicial publicity in the interests of ensuring a fair trial.522 The effect of these judicial exhortations is difficult to quantify. Furthermore, the judiciaries, in most states, have also sought to forestall contempt transgressions by the media through the appointment of media liaison or public affairs officers. One of their jobs is to assist the media with advice on how to responsibly cover the courts. Notwithstanding these benefits the media can be side-tracked by its commercial objectives into courses detrimental to particular accused persons, and the judicial system generally. This is not a new phenomenon. Martin CJ, who had himself been at one time a newspaper editor, said as much in a judgment in the 19th century.523 It is axiomatic the media has a fascination with reporting criminal activity particularly if the offences involve prominent people or sex crimes and murders. Hurst and White 524 have noted how this fascination with crime has been a staple of Australian media since at least the
1840s.
Unfortunately, the conflict between the right to freedom of speech and the right to a fair trial is not specifically addressed in any media code of practice although journalists who belong to the Media and Entertainment and Arts Alliance (MEAA) in their Code of Ethics commit themselves to fairness and respect for the rights of
522 Chief Justice of Queensland Paul de Jersey AC, 'The media and criminal law', paper presented to Lawasia Downunder 2005, Gold Coast, 23 March 2005. 523 Re The Evening News (1880) 1 NSWLR 211 at 240.
180 others.525 However, the observance of this code is restricted only to those journalists who are members and does not bind the people who exercise real and ultimate power over what methods are used in journalism, namely, media proprietors, editors and producers. Evidence would also seem to suggest that while MEAA membership is comparatively strong throughout metropolitan newspapers and the public broadcasters (except at senior management levels) it is quite weak in the commercial television and radio sectors.526 In any event, there is a guidance clause that allows members to override the Code’s standards where there is ‘substantial advancement of the public interest’.527 While there are enforcement procedures for handling complaints against journalists contained in the MEAA rules these are not widely known to the public and are therefore rarely employed.528 Other media organisations also have Codes of Conduct which journalists in their employ are expected to observe. These codes invariably include references to ‘fair and balanced’ reporting as well as exhortations to ‘act always in the best interests of the public’.529 However, as many journalists are employees who are subject to direction and veto by their employers they lack control over many of the issues canvassed in the various codes.
Nevertheless a recent media credibility survey conducted by Roy Morgan Research on behalf of The Reader magazine found 65 per cent of journalists surveyed agreed
524 Hurst J & White S, Ethics and the Australian News Media, MacMillan Education, Melbourne, 1994. 525 MEAA Australian Journalists’ Association Code of Ethics Clause 1. “Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do no suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply’.
181 that 'ethics is the one area in Australian journalism that needs an enforceable code supported by editors and proprietors'.530 In contrast the Council of Europe has adopted a text on the ethics of journalism as a result of the report of the Committee on Culture and Education.531 This wide-ranging document underlines the responsibility which the media have for the provision of news and information.
These include a number of specific ethical concerns about the treatment of individuals relating to privacy and the right of reply. But of greatest relevance for present purposes is paragraph 22:
In journalism, information and opinions must respect the presumption of innocence,
in particular in cases which are still sub judice and must refrain from making
judgments.
The expectation is that the principles will be implemented via self-regulatory bodies and that reviews will be taken of the impact. Admittedly, the above paragraph does not specifically address my thesis since it relates to the present sub judice standard but it does go some way towards acknowledging the importance of respecting the presumption of innocence. However, as there is no 'in-house' or self-regulation by the media concerning pre-trial publicity outside the sub judice period responsible legislators should consider legislating to extend the sub judice period to when a person comes under suspicion. South Australian legislation does however, create an obligation for responsible reporting. Under section 71B of The Evidence Act 1929
(SA) where there has been pre-trial publicity but no ultimate conviction:
530 'Why Australians Don't Respect The Media', The Reader, 2005 at 11.
182 The person by whom the publication is made shall, as soon as practicable after the
determination of proceedings, publish a fair an accurate report of the report of the
proceedings with reasonable prominence having regard to the prominence given to
the earlier report.
It must be noted the media do not believe that further measures are needed to restrain them from interfering with the fairness of trials, especially criminal ones. For example, one media commentator, quoting from NSW Bureau of Crime Statistics and Research, claims the judiciary is more to blame for trials being aborted than the media. According to the figures released in 2002, of the trials that were aborted 43 per cent were due to the introduction of inadmissible evidence. Twenty one per cent of those aborted arose because of juror knowledge of a particular participant in the trial,; eleven per cent because of some problems with witnesses; Judges misdirections or mistakes accounted for four per cent and finally, prejudicial publicity by the media, one per cent.532 Nevertheless, even one per cent of trials aborted through unnecessary prejudicial publicity are one per cent too much, especially if it involves a miscarriage of justice.
531 Council of Europe, Assembly debate 1993 (42nd sitting) 'On the ethics of Journalism', report of the committee on Culture and Education, Doc. 6854. 532 Ackland R, 'Much Ado About Nothing – the True State of the Judicature,' Australian Press Council Annual Address, Sydney, 31 March 2005.
183 7. PREFERRED APPROACH
The presumption of innocence is a fundamental principle of the common law and has been enshrined in international covenants.533 The most significant effect of the presumption is its requirement that the Crown bear the burden of proving all elements of the charges but a logical extension of it is an accused should suffer no detriment as a result of being charged let alone merely suspected. There does not appear any reason why this principle should be disturbed for some greater public interest. The public interest, in this context, means more than a prurient desire to know the identity of accused persons. Support for this argument has come in a recent defamation case in Tasmania where a Supreme Court judge said it was his view that, in general, it is not for the public benefit that the media should publicly allege that a person has committed crimes of which she or he has not been convicted, whether or not there are currently proceedings afoot with respect to crimes.534 Also publishing the name of a person suspected of a crime before they appear in court pre-empts an accused's right to apply to the court for a suppression order because once the accused’s identity is known a subsequent suppression order would be of little benefit.
If the media are allowed to name an accused and the details of his or her alleged crime there is a risk that potential jurors will be made aware of, and be influenced by, material that is not subsequently admitted as evidence in a trial. This conclusion is supported by Chesterman's study which found jurors chiefly recalled reports of the commission of the alleged offence rather than reports of the arrest of the accused.
Unfortunately, for an accused, the decision to publish a person’s name before they are formally charged is not in contempt of court.
533 "The golden thread" per Sankey LC in Woolmington v DPP [1935] AC 462 at 481; Article 14 International Covenant on Civil and Political Rights.
184
Therefore, to close this gap in the legislation this thesis recommends that:
Publication of identifying details of a person charged or suspected of an offence before they appear in court should be prohibited unless the person consents or it is necessary to ensure the safety of a person or the community and/or to help locate the suspect.
This recommendation closely follows Queensland's Criminal Law (Sexual Offences)
Act 1978 which is the only Queensland Act that contains a restriction on the publication of information that may identify an adult accused.535 Sections 6 and 7 of the Act also prohibit the publication of identifying information about a complainant and a defendant. However, these provisions are much narrower and apply only to a report about certain court proceedings.536 Children under the age of 17 also enjoy the protection of the Juvenile Justice Act 1992 537where their identity is prohibited from publication for all offences and applies from the time that a child is first investigated by the police. The prohibition however, continues to apply after a child is convicted and sentenced which is not what this thesis recommends for adults. The argument is that there should be a general statutory power to suppress identifying particulars
534 O’Neill v Australian Broadcasting Corporation, Roar Film Pty Ltd and Davie (2005) TASSC 26. 535 S10 of the Criminal Law (Sexual Offences) Act (Qld) prohibits a person from making or publishing a statement or representation that reveals the name, address, school or place of employment of: (a) a complainant (defined as a person who is alleged to be the victim of any offence of a sexual nature) at any time; and (b) a defendant charged with only certain sexual offences before the defendant is committed for trial or sentence. 536 Section 6, which regulates publications that identify a complainant(and a defendant where their identity could lead to the identification of the complainant, such as when they are related) only applies to a report about a criminal hearing or trial. See also Section 7, which regulates publications that identify a defendant, applies only to a report about a committal hearing. 537 Legislation in all Australian States and Territories protects the identity of a juvenile accused of a criminal offence.
185 about any defendant, regardless of the nature of the offence committed. Interestingly, anonymity for defendants in sexual offence matters was repealed in the United
Kingdom in 1988 following a recommendation by the Criminal Law Revision
Committee (1984). One of the reasons was the injustice of singling out alleged sexual offenders for special protection 'while other defendants, including those accused of the more heinous crime of murder, could be identified'.538 In Australia there is the absurd situation in most jurisdictions where a person charged with the murder of a child can be named whereas a person accused of a sexual crime cannot.
This is especially true where by naming a person accused of a sexual offence there is a risk of identifying the complainant or complainants. This then leads to a question of equity. Why should a complainant enjoy protection from identification when an accused, especially when they have not been charged, be exposed to the full blast of publicity?
In the case of the media a ‘suspect’ is one usually identified as such by the police or some other judicial authority as it is rare for the media, because of defamation concerns, to identify someone as a ‘suspect’ without a credible source to rely on. By preventing the naming of an accused until he or she is formally charged in court makes the matter sub judice with all its attendant restrictions but it does not entirely prevent freedom of speech as the media is still able to report the bare facts of the charge and the allegations it raises thereby the appropriate balance between freedom of speech and a fair trial is maintained.539 It also does not impact on the concept of open justice that is so jealously guarded by the judiciary and the media because court proceedings are not affected by pre-trial name suppression. As noted in Chapter 5
538 Home Office (2002), Protecting the public: Strengthening protection against sex offenders and reforming the law on sexual offences, p.19, Her Majesty's Stationery Office, Norwich (UK).
186 'Analysis of Present Sub Judice Contempt Law' there is some uncertainty when the sub judice period starts. Although the present starting point is when proceedings are
'pending' there is some authority for the view that it could, in certain circumstances, begin when proceedings are 'imminent'. The 'imminence' test has rightly been criticised by the media and distinguished legal authority as being too uncertain for what is obvious after an event is by no means clear beforehand.540 The recommendation that an accused cannot be named until he or she has been formally charged in court would end this uncertainty for the benefit of all concerned. A clear prohibition on naming a suspect would mean the media are then confined to publishing only the bare facts of a crime such as any witness could attest to without prejudicing the rights of a suspect.
Another benefit of this recommendation is that, if implemented, it should cut down the incidences of disrupted trials caused by prejudicial pre trial publicity. A good example of wasted time and expense caused by damaging pre trial publicity was the
Childers Backpacker Fire case. As a result of the pre trial publicity there was an unsuccessful application for a change of venue, an unsuccessful appeal against that decision, a mooted application for special leave to appeal to the High Court eventually circumvented by the intervention of the Chief Justice of Queensland to accede to the change of venue, the trial itself, then an unsuccessful appeal against sentence on the grounds of an unfair trial mainly because of prejudicial publicity and finally an unsuccessful application for special leave to appeal to the High Court for a permanent stay!
539 Packer v Peacock [1912] 13 CLR 577 at 588. 540 Borrie & Lowe, The law of Contempt ,3rd ed., Butterworths, London ,1996 at 245.
187 An anticipated criticism of this thesis is that journalists will say that if they are prevented from naming a suspect then a whole class of people could be placed under suspicion until the accused appears in court. For example, if the media were prevented from naming figures like MP Bill D'Arcy or prominent Queensland swimming coach Scott Volkers then all Queensland MP's or all Queensland swimming coaches would be regarded with suspicion by the public. On the other hand one could argue the comparatively minor discomfort of a few for a short period of time is a smaller price to pay than the almost certain prospect that an accused, by being named before being charged, would be at a greater risk of being denied a fair trial and would ultimately suffer far worse consequences. As noted previously541 this was the view of a New Zealand Law Commission paper that stated when a conflict arises between a fair trial and freedom of speech, the former has prevailed because the compromise of a fair trial for a particular accused may cause them permanent harm. Whereas the inhibition of media freedom, ends with the conclusion of legal proceedings. It has also been argued that an accused's identity will, in any event, travel by rumour and gossip even in the face of a prohibition order. This may be so but one would be more confident of potential jurors more readily rejecting rumours and gossip than they would of a published fact that an accused was under investigation for some heinous crime.
One leading Brisbane journalist Tony Koch, has also argued corruption would flourish if journalists were prevented from naming public officials who were under investigation.542 For example, a situation where 'police or other investigators were warned off because the issue was too embarrassing for the government of the day or
541 n 45. 542 Tony Koch, ' Media has a duty to victims', The Courier-Mail, 1 September, 1998.
188 the person "too important”,’ has been put forward as a counter argument to name suppression.543 While there may be some merit in this argument one could be forgiven for suspecting the real value for journalists in naming an accused, especially if they are a prominent person, is to 'scoop' their opposition. The protestation of good purposes brings to mind Coke's statement that 'sometimes when the public good is pretended, a private benefit is intended'.544 The media fixation on obtaining scoops was pointed out by D'Arcy's solicitor Terry O'Gorman in a reply to Koch's article where he said there was not the slightest hint of police corruption or maladministration in the way the investigation against his client (D'Arcy) was carried out545 yet D'Arcy was named in the media before being charged.
There is no evidence that the judiciary will become less accountable or that any abuses of power or process would be more likely to occur if the media was prohibited from publishing the identity of accused persons. It is important to note that the principle of open justice is not an absolute one. There have always been common law and statutory exceptions to this principle. Therefore, this thesis recommends that a general statutory power to prohibit the naming of a suspect or an accused be introduced. The two main reasons for this are:
1. Unless a person's name is suppressed until after they have been charged, the
person will be identified as having been accused of an offence that,
ultimately, they may not be charged with or required to stand trial.
2. The second reason for the suppression power is that, given the number of
changes that have been made in the past 15 years to improve the way the
543 Ibid. 544 10 Eng. Rep.142.
189 criminal justice system responds to victims of crime,546 any degradation of
the 'perceived' rights of an accused may be not only inappropriate but unfair.
It must be noted a similar legislative proposal was introduced into the South
Australian Parliament in 1965 that prohibited the publication of any material that revealed the identity of a person accused of crime in the absence of a conviction. The
Bill lapsed. On the other hand it is now 40 years since the proposal was first mooted and Australians now have more access to a wide variety of media, including not only newspapers, television and radio but the Internet. Furthermore, the media's more aggressive style of reporting and willingness to engage in 'trial by media' makes it even more important for this issue to be re-visited.
It must be acknowledged the Internet, because of its easy accessibility and world wide reach, poses special difficulties as far as devising an effective prohibition on prejudicial pre trial publicity. It is too early to say whether the Internet will render the sub judice rule unworkable however, as noted above, one trial in NSW was aborted after jurors accessed incriminating information on the Internet about an accused despite judicial instructions to the contrary. Therefore, while a full examination of the special problems of the Internet is beyond the scope of this thesis it is certainly worth of further research..
545 Terry O'Gorman,"Issue of naming rights", The Courier-Mail, 5 September, 1998, 27. 546 For example, the Criminal Offence Victims Act 1995 where a victim of crime has a right to have a say in the criminal justice process and to be given certain information about the process and their case.
190 There are two exceptions to the recommendation that an accused not be named before being charged.
1. If it is necessary, in the estimation of the police and other relevant
authorities, to ensure the safety of a person or the community and/or to
locate the suspect.
This is designed to cover the situation as described above in James v Robinson where an armed gunman at large was clearly a danger to the community. The media has also, in the past, been given the 'green light' to warn the public of housebreakings by an accused in the course of his flight.547 In situations such as these it is difficult to argue that the public interest should not prevail over the rights of an individual.
However, it should not be assumed this recommendation gives the media the right to reveal any prior convictions an accused in flight may have. While there is a public interest in notifying the public that a person is dangerous there is no justification in mentioning an accused's criminal history, especially when no charges have been laid.
Unless this is fully understood journalists could be tempted to conduct a 'trial by media' which this thesis is anxious to avoid.
2. If the accused person consents to being named.
The reason for this exception is that an accused could seek to circumvent the system by speaking to the media in a way deliberately prejudicial to his or her best legal interests and then make application, at a later stage, that their subsequent trial was
547 Davis v Baillie [1946] VLR 486 at 495.
191 tainted by pre-trial publicity. This scenario was alluded to by Cummins J when hearing an application for orders to prevent publicity which might have prejudiced a fair trial of a notorious Victorian underworld figure.548 Also, according to a report of a meeting of the Standing Committee of Attorneys-General (SCAG) in New Zealand, the then NSW Attorney-General, John Dowd, said that a small group of criminal lawyers had deliberately encouraged media coverage of their clients' cases in an attempt to have the trials aborted.549 Dowd told the meeting the aim was to create an atmosphere where the prospect of a fair trial could be declared to have been prejudiced. He said he was also extremely concerned by (un-named) incidents in which both police and the media had publicly canvassed evidence which was likely to prejudice a fair trial.550
Certainly public confidence in the criminal justice system would be undermined further if notorious defendants accused of horrific crimes were able to escape justice because they had deliberately engendered prejudicial publicity. However, is this necessarily a fault of the justice system? Perhaps if there was a case of a notorious defendant escaping justice because of extreme pre trial publicity it might turn the public's attention to those truly responsible: the media and to some extent, the police.
It is possible such a scenario will arise in Queensland if the by now notorious surgeon Dr Jayant Patel, dubbed 'Dr Death',551 is ever extradited and brought to trial for the alleged murder of patients under his care. Even before a Commission of
548 DPP v Williams & Ors [2004)] VSC 209 at para.26. 549 See David Solomon, 'A journalist's perspective' (A paper presented at The World Association of Press Councils' First Oceania Regional Conference, Brisbane, June, 1999). 550 Ibid. 551 PM, ABC Radio, 6:48pm, 13 June 2005.
192 Inquiry552 was constituted to inquire into his conduct the Queensland public was regaled with reports in the media of his tendentious nick name and his alleged criminal incompetence as a surgeon. If the media had been banned from revealing his name until his appearance in court (assuming this will in fact occur) there would be at least a chance that the usual instructions by a judge to ignore prior prejudicial publicity would have some effect because his name until then would have not been connected with the reportage of the allegedly criminal acts. However, it must be acknowledged in this particular instance the public interest of confidence in the public health system could outweigh the prejudice to Dr Patel and therefore come within the first exception to the recommendation that suspects not be named before being charged. Also, as noted in the Chapter on Freedom of Speech, where a politician is named as a suspect then it could be argued that the Lange defence concerning government or political matters may be applied.
It is difficult to understand how the public interest would not be served by a mere delaying of an accused's name until he or she actually appears in court. Or to put it another way, how is the public interest served by publishing inadmissible material before a trial? This has been recognised by at least one media organisation.
Queensland Television Ltd in its submission to the CMC's 'Inquiry for Sexual
Offences' in 2002 acknowledged disclosing the identity of an accused as soon as a person is suspected of committing an offence could be unfair to an accused and arguably would constitute an unacceptable invasion of their privacy.553
552 On 26 April 2005, the Queensland Government appointed a Commission of Inquiry to inquire into and report on issues connected with the appointment of Dr Jayant Patel to the Bundaberg Hospital and complaints relating to clinical practice and procedures conducted by Dr Patel.
193 It appears the decision in Attorney-General for the State of New South Wales v X 554 has marked a shift in the way in which Australian courts balance the competing public interests in free speech and the right to a fair trial. Previously, where material was directed at the guilt or innocence of an accused person all members of the High
Court in Hinch held that the public interest in the publication would have to be substantial to outweigh the public interest in a fair trial.555 As a result of Attorney-
General for the State of New South Wales v X freedom of speech has been accorded equal weight to the right to a fair trial. This development is undesirable in that it encourages 'trial by media' with journalists free to imply the guilt of an accused with the knowledge that if the crime is of a notorious nature they can rely on a public interest defence to avoid contempt charges to the detriment of the rights of the accused. A law banning publication of an accused's name until charged would go some way to re-dressing what is arguably a current imbalance between freedom of speech and a fair trial.
553 Queensland Television Ltd submission to 'The Inquiry for Sexual Offence Matters', Crime and Misconduct Commission (2002) at p.6. 554 (2000) 9 NSWCA 199 555 Hinch v Attorney-General(Vic) (1987) 164 CLR 15 at 75 -77.
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