Queensland University of Technology Law and Justice Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Queensland University of Technology Law and Justice Journal |
|
CAN ‘DR DEATH’ RECEIVE A FAIR
TRIAL?
CRAIG
BURGESS [*]
Identification of a person suspected of a heinous crime before being
charged risks prejudicing a fair trial. The identification of
rogue former
Queensland surgeon Dr Jayant Patel is but one recent example. Present laws place
this type of negative publicity outside
the reach of sub judice contempt. This
article argues there should be a change in the law making it an offence for the
media to publish
the fact that a person is under investigation until the person
has been charged.
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.[1]
The genesis for this
article arises from a number of recent criminal cases involving high profile
people, and others, accused of heinous
crimes.[2] Dr Jayant Patel is the
latest to suffer sustained negative media publicity since complaints related to
his medical competency were
first raised in 2004 and early 2005. These
complaints, as well as others relating to other medical practitioners and
Queensland Health
administrators, led to the establishment of the Queensland
Public Hospitals Commission of Inquiry.
At the conclusion of its public
hearing the Inquiry recommended Dr Patel be the subject of further investigation
by the Queensland
Police Service in relation to fraud, assault, assault
occasioning bodily harm, grievous bodily harm, negligent acts causing harm
and
manslaughter.[3]
In November
2006 a Queensland magistrate signed warrants for these charges which, at the
time of writing, are in the hands of the
Federal Attorney-General’s
department which will assess whether they meet extradition treaty requirements
and should be pursued.[4] Dr Patel has
not returned to Australia since his departure in 2005 and he continues to
attract considerable interest from the Australian
media while living in
Portland, Oregon.
This article considers whether Dr Patel will receive a
fair trial if he returns or is extradited to return to Australia. It will be
argued that there are significant obstacles to ensuring the fairness of any
criminal trial which Dr Patel may face. Prejudicial publicity
in relation to Dr
Patel may be such that an Australian court would find it impossible to ensure
that Dr Patel was not tried unfairly.
Similar parallels have been drawn from the
situation involving the late, disgraced businessman Christopher
Skase.[5] As with Skase, the question
is not whether Dr Patel is guilty or not – that is an issue for the court.
Rather, the question
considered here is whether or not a jury trial involving Dr
Patel would contain the elements of a fair trial in which his guilt or
innocence
could be determined.
A particular element of a fair trial that would be
at risk would be the impartiality of a jury which would be drawn from a
potentially
prejudiced population. The question thus becomes whether the
extensive pre-trial and pre-charge publicity that Dr Patel has been
subjected to
would prevent him from receiving a fair trial, and what action can be taken to
alleviate that unfairness.
The media often define freedom of speech as ‘the right to
know’. This article acknowledges that right. But it also recognises
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 article argues, prohibiting the naming of a
suspect and any other prejudicial
material before charges are laid. A suspect in
this context is, to use the Macquarie Dictionary definition, ‘a person
suspected
of a crime, offence or the like’. In media terms this is usually
someone identified by police as a ‘suspect’ regardless
of whether
charges are about to be preferred. Most people recognise the desirability of
freedom of speech. But how does one define
it? Perhaps the shortest definition
would be the expression of thought through 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.[6] Butler has succinctly
described free speech as ‘speech that is not subjected to regulation by
the State’.[7] 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.[8] 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 would
agree
that the law should prohibit an action such as that. Australia, under its
Constitution, does recognise the right to trial by
jury.[9] But it does not have a
written Bill of Rights guaranteeing freedom of speech. However, Australia has
ratified the International Covenant on Civil and Political Rights (ICCPR)
of which Article 19 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;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 argument. 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 Amendment[10] and the Sixth Amendment[11] of the United States 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.[12] 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 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:
(b) For the protection of national security or of public order, or of public health or morals.
Truth like all other good things, may be loved unwisely – may be
pursued too keenly – may cost too
much.[14]
New South Wales
(NSW) Chief Justice Spigelman J said recently 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.[15]
It is
interesting 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 obita dicta, that the right is constitutionally
guaranteed.[16] Furthermore the
significance of the principle of a fair trial has been characterised in numerous
High Court judgments in recent years
as ‘the central thesis of the
administration of criminal
justice’,[17] as ‘the
central prescript of our criminal
law’,[18] as a
‘fundamental
element’,[19] and as an
‘overriding
requirement’.[20] 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 on 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. 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’.[21] To that he might
also have added: ‘and the media’ because ‘trial by
media’[22] by its very nature
detracts from the notions of what the law describes as a fair trial. That is a
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.[23] 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 limited
the general discretion of the judge in certain ways. Even where
evidence is apparently admissible, the presiding judge has discretion
to
disallow it if its admission ‘would operate unfairly against the
defendant’.[24] Thus the judge
may exclude illegally obtained evidence which is technically
admissible.[25] 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’.[26] 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 that have encouraged the media in Australia to push
the boundaries in regard to pre-trial prejudicial publicity.
In
Nationwide News Pty
Ltd,[27] and
Australian Capital Television Pty
Ltd,[28] a majority of the High
Court of Australia had distilled from the provisions and structure of the
Australian Constitution, particularly from the concept of representative
government which is enshrined in the Australian Constitution, an implication of
freedom of communication. Subsequently in Theophanous v Herald & Weekly
Times Ltd,[29] and Stephens v
WA Newspapers,[30] 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,[31] 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,[32] judgment by the
NSW Court of Appeal in which the Chief Justice opined that the 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.
The term sub judice means ‘in course of
trial’.[33] It is also often
referred to as being ‘under a judge’. The object of the 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 paper 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.
A 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 judice;[34] and
(b) either that:
i) there was an intention to interfere with the administration of justice in the proceedings;[35] orThe principal aim of sub judice contempt is to prevent publications that may damage a fair trial before any 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 it does not always prevent jury prejudice.[37] Indeed this is the thrust of my article that the present contempt of 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.[38]
ii) the publication of the material had that tendency.[36]
B 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.[39] 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.[40]
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 newspaper on Sunday
10 February 1963. It was not until Tuesday 12 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.
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
Ltd,[41] which was
contrary to the 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. The decision of the High Court in James v Robinson
has been criticised in Borrie &
Lowe,[42] who point out that the
common law decisions in England at the time were not committed to the idea that
proceedings had to be ‘pending’.
The Australian 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
article 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.
It is now pertinent to identify some cases where suspects have been named
before they have been charged. As mentioned above Dr Jayant
Patel’s case
is but one example. In R v
Long,[43] a suspect was
not only identified in a newspaper but his alleged former criminal acts (some of
which were invented) were also
published.[44] Former Queensland
Member of Parliament, Bill 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.[45] 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.[46] The 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’.[47] Finally, a
suspect in a recent notorious Brisbane triple murder has been subject to
prejudicial material even more damaging than
that endured by Long and
D’Arcy. To take one example, The Courier-Mail devoted six columns
to an analysis of the suspect’s
website.[48] The article claimed the
man (who at the time of writing has yet to be charged) listed ‘cars, girls
and death’ on his
website and they also revealed his personal dislikes
including ‘liars and unfaithful people’. A photo of his website
was
also published.[49] 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.
Should the
man ever 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. 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. A defamation action may not however,
restore the person’s reputation.
A 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. 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.
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 police to find and
prosecute the alleged offender. The body of one of the missing women was found
in 1996. Police told the media 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 who was later revealed to be their ‘chief’ suspect. In August
1998 ABC Television revealed
the man’s name and the fact that he had been
given and failed a lie detector test. Western Australian Director of Public
Prosecutions,
Robert Cock, was one of several judicial figures unimpressed with
police leaking such juror-sensitive information. He said he could
not imagine a
situation in which the results of a test, which are not admissible in
proceedings, could ever be
justified.[50] 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.[51] Since then another
suspect has accused Western Australian police of threatening him with media
exposure and relentless police
scrutiny.[52]
There are a number of options which courts take into account when
examining remedies to overcome the effects of prejudicial pre-trial
publicity.
These include but are not limited to: delaying the start of a trial, changing
the venue, the issuing of judicial instructions
to ignore prejudicial publicity,
discharging a jury, challenging juries for cause and a trial by a judge alone.
This article 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 above remedies may in some circumstances
cause more harm than good to the accused’s
prospects of receiving a fair
trial. For example, a new trial can 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. Similarly, a change of
venue causes inconvenience and expense to all
those involved in the trial. It is
also of negligible effect in cases where the crime has attracted national or
international attention
as with Christopher Skase and Dr Patel. 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 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
on its own facts. As has been noted by leading Western Australian
criminal barrister, Mark Trowell
QC[53] there will be cases where the
publicity has been so prejudicial that it would deprive the 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
article that there be a ban on
the identification of a suspect before being charged in the interests of
fairness would, if the Long and 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.
United States research supports the hypothesis of this article that
jurors exposed to negative pre-trial publicity are significantly
more likely to
judge a defendant guilty compared to jurors exposed to no negative pre-trial
publicity.[54] It is also worthy of
note that pre-charge 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.[55] The study 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 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. 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.[56]
2. Jurors were more likely to recall pre-trial publicity – for example, reports of pre-trial proceedings – in three situations. These were when:
a. it related to accused people who were independently well-known in the community;These findings seem to suggest that of particular relevance to jury recall is the extent to which the case has captured public attention of which the ‘Dr Death’ scandal is but one of many examples.
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 discernable.[57]
The presumption of innocence is a fundamental principle of the common law
and has been enshrined in international
covenants.[58] 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 not suffer any 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 prurient desire to know the identity of accused
persons. Also publishing the name of an accused before
they appear in court
pre-empts their 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 an 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. Therefore to
close this gap it is
recommended:
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.[59] Children under the age
of 17 also enjoy the protection of the Juvenile Justice Act
1992.[60] 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’.[61]
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 the 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?
For the sake of
completeness, the ban on identifying particulars should also apply during
official inquiries such as inquests or Royal
Commissions where evidence emerges
suggesting the guilt of a ‘suspect’. Often such evidence adduced may
be inadmissible
in any future criminal trial so until an accused has been
charged then this article argues the ban should also apply during official
inquiries in the interests of a fair trial.
Some criminal lawyers have
suggested suppressing the publication of material suggesting guilt, rather than
the identity of the ‘suspect’,
would be a more effective remedy.
However, as noted above in Chesterman’s research, jurors are more likely
to recall pre trial
publicity when it relates to accused people independently
well known in the community. That is, the identification of a person is
more
likely to trigger memory of alleged offences than the offences
themselves.
It may be argued this recommendation would only be of
relevance to very high profile cases such as ‘Dr Death’ and
Christopher
Skase, for example. Certainly, people well known in the community
suffer most from negative publicity but in the interests of equity
as well as
practicality the ban on the publication of identifying details should apply to
all ‘suspects’ regardless of
their station in life.
It must
also 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, at least
one trial in NSW was aborted after jurors’ accessed incriminating
information on the Internet
about an accused despite judicial instructions to
the contrary.[62] Therefore, while a
full examination of the special problems of the Internet is beyond the scope of
this article it is certainly worthy
of further research.
To end at the beginning; if the notorious Dr Jayant Patel is ever
extradited to Queensland there will be grave doubts concerning the
circumstances
in which he could ever be tried fairly. 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. That is because
his name until then would not have been connected with the reportage
of his
allegedly criminal acts. 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? A law
banning publication of an accused’s name until charged would go some way
to re-dressing
what is arguably an imbalance between freedom of speech and a
fair trial.
[*] BA USQ LLM(research) QUT Lecturer Media Law & Ethics, University of Southern Queensland.
[1] R v Parke
[1903] 2 KB 432.
[2] Although
this article draws from a wide range of jurisdictions the reader will note a
Queensland bias. This is because the basis
of the article, 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.
[3] Hon
Geoffrey Davis, Queensland Public Hospitals Commission of Inquiry Report
(2005) Queensland Government 191
<http://www.qphci.qld.gov.au/>
at 29
March 2007.
[4] Paul Osborne,
‘Patel Marathon Reaches a Milestone’, Australian Associated
Press, (Australia) 24 November 2006.
[5] J Giddings, ‘Would
Christopher Skase Receive a Fair Trial?’ (2000) 24 Criminal Law
Journal 281.
[6] Australian
Law Reform Commission, Contempt, Report No 35 (1987) [242]. See also
Hinch v Attorney General (1987) 164 CLR 57 (Deane J): ‘Freedom of
public discussion of matters of legitimate public concern is, in itself, an
ideal of our society’.
[7] D
Butler and S Rodrick, Australian Media Law ( Lawbook Co, 2nd
ed, 2004) 3.
[8] Sir A Denning,
Freedom Under The Law (Hamlyn,1949)
35.
[9] Australian Constitution
s 80.
[10] The First
Amendment relevantly provides: ‘Congress shall make no law abridging the
freedom of speech or of the
press’.
[11] 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.
[12] D J
O’Callaghan, ‘The United States Experience of Unfettered Speech and
Unfair Trials: A Case Against an Australian
Bill of Rights’ (1998) 72
Australian Law Journal
958.
[13] New Zealand Law
Commission, Juries in Criminal Trials: Part Two, Preliminary Paper No 37
(1) (1999) [289].
[14] Pearse
v Pearse [1846] De G & Sm 12, 28-9; [1846] EngR 1195; 63 ER 950,
957.
[15] J Spigelman,
‘The Truth Can Cost Too Much: The Principle of a Fair Trial’
(4th Gerard Brennan Lecture, Bond University,
Gold Coast, Queensland
2003).
[16] Dietrich v The
Queen [1992] HCA 57; (1992) 177 CLR 292, 326 (Deane J), 362 (Gaudron
J).
[17] McKinney v The Queen
[1991] HCA 6; (1991) 171 CLR 468, 478
[18]
Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 56-7
(Deane J).
[19] Dietrich v
The Queen [1992] HCA 57; (1992) 177 CLR 292, 299 (Mason CJ and McHugh
J).
[20] Ibid 330 (Deane
J).
[21] [2004] UKHL 3,
[13].
[22] ‘Trial by
Media’ is a phrase made popular in the 20th century describing
the impact of media coverage on judicial proceedings
by creating a widespread
perception of the guilt or innocence of the accused regardless of the
jurisdiction or findings of a court
of
law.
[23] (1923) CLR 518,
541-2.
[24] Callis v Gunn
[1964] 1 QB 495, 501 (Lord Parker
CJ).
[25] R v Lee [1950] HCA 25; (1950)
ALR 517.
[26] J D Heydon,
Cross on Evidence (Buttterworths, 2nd Australian Edition,
1979) 30.
[27] [1992] HCA 46; (1992) 177 CLR
1.
[28] [1992] HCA 45; (1992) 177 CLR
106.
[29] [1994] HCA 46; (1994) 182 CLR
104.
[30] [1994] HCA 45; (1994) 182 CLR
211.
[31] [1997] HCA 25; (1997) 189 CLR
520.
[32] Attorney-General
(NSW) v X [2000] NSWCA
199.
[33] Osborn’s
Concise Law Dictionary (Sweet & Maxwell, 8th ed, 1993)
315.
[34] James v Robinson
[1963] HCA 32; (1963) 109 CLR 593.
[35]
See the discussion in Harkianakis v Skalkos (1997) 42 NSWLR 22, 28
(Mason P).
[36] R v David
Syme and Co Ltd [1982] VicRp 16; [1982] VR 173 (Supreme Court of
Victoria).
[37] A Ardill,
‘The right to a Fair Trial’ (2000) 25(1) Alternative Law
Journal 3.
[38] Borrie and
Lowe, The Law of Contempt (Butterworths, 3rd ed, 1996)
248.
[39] James v
Robinson [1963] HCA 32; (1963) 109 CLR
593.
[40] New South Wales Law
Reform Commission, Contempt by Publication, Report No 100 (2003)
Recommendation 13 [7.27].
[41]
[1960] SLT 5.
[42] Borrie and
Lowe, above n 38, 248.
[43]
(2002) QSC 054.
[44] Paula
Doneman and Rory Callinan, ‘Wanted Drifter May Have Record for Attempted
Arson’, The Courier-Mail (Brisbane), 26 June 2000, 5 where Long was
reported to have previously been found guilty of attempted murder. Long’s
criminal
history tendered in court during sentencing submissions did not
disclose any conviction for attempted
murder.
[45] Author, ‘MP
Will Not Quit Qver Sex Claims’, The Courier-Mail (Brisbane), 4
September 1998, 1.
[46] Terry
O’Gorman, ‘The Issue of Naming Rights’, The
Courier-Mail (Brisbane), 5 September 1998,
27.
[47] Chris Mitchell,
‘Media’s Reply Should be Aired’, The Courier-Mail
(Brisbane), 5 September 1998,
27.
[48] Author, ‘Triple
Murder Suspect’s Personal Interests: Cars, Girls and Death’, The
Courier-Mail (Brisbane) 10 April 2004,
3.
[49]
Ibid.
[50] Radio National,
Background Briefing, 25 June 2000,
transcript.
[51]
Ibid.
[52] Paige Taylor and
Amanda Banks, ‘I’m Being Framed For Murder: Cabbie’, The
Australian, 23 September 2004,
3.
[53] Mark Trowell QC,
‘The Media and the Criminal Law’, (Paper presented at the LAWASIA
Downunder 2005, Gold Coast, 23 March
2005.
[54] N Mehrkens Steblay, J
Besirevic, S M Fulero and B Jimenez-Lorente, ‘The Effects of Pre-trial
Publicity on Juror Verdicts:
A Meta-Analytic Review’ (1999) 23(2) Law
and Human Behavior, 219.
[55]
M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An
Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice
Foundation of NSW, 2001).
[56]
Ibid, xiv [1].
[57] Ibid, xiv
[2]-[3].
[58] ‘The golden
thread’ (Sankey LC) in Woolmington v DPP [1935] UKHL 1; [1935] AC 462, 481;
Article 14 International Covenant on Civil and Political
Rights.
[59] Section 10 of
the Criminal Law (Sexual Offences) Act 1978 (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.
[60] Legislation in
all Australian States and Territories protects the identity of a juvenile
accused of a criminal
offence.
[61] Home Office,
Protecting the Public: Strengthening Protection Against Sex Offenders and
Reforming the Law on Sexual Offences (2002)
[19]
<www.homeoffice.gov.uk/documents/protecting-the-public.pdf?view=Binary> at
2 April 2007.
[62] R v K
[2003] NSWCCA 406.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/QUTLawJJl/2007/2.html