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Craig Burgess Thesis 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. 3 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 4 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.
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