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What’s wrong with trial by media?

By Steven | October 21, 2009

I get irked by those who rail against “trial by media” as if it’s some general category of wrongdoing. Yes, some reporting of allegedly criminal conduct is unfair, inaccurate or unbalanced, and some may even prejudice an accused person’s right to a fair trial. In such cases, we should by all means criticise the reporting for those flaws. But in other cases, trial by media is exactly what the media is for.

I’ve just come across an Australian High Court injunction case (ABC v O’Neill [2006] 229 ALR 457) which, I’m pleased to note, makes just this point. The first-instance judge had awarded an interim injunction against the screening of a documentary, partly on the grounds that it amounted to trial by media. Here’s Gleeson CJ and Crennan J’s response:

First, it is not the fact that allegations of serious criminal conduct usually become known to the public only as a result of charges and subsequent conviction. On the contrary, the process often works in reverse: charges and subsequent conviction often result from the publication of allegations of serious criminal conduct. Subject to the law of contempt (and, of course, the law of defamation) media outlets are free to make, and frequently make, allegations which are directed towards, or which have the effect of, prompting action by the authorities. Condemnations of trial by media sometimes have a sound basis, but they cannot be allowed to obscure the reality that criminal charges are sometimes laid as a response to media exposure of alleged misconduct. The idea that the investigation and exposure of wrongdoing is, or ought to be, the exclusive province of the police and the criminal justice system, bears little relation to reality in Australia, or any other free society. There are heavily governed societies in which the police and other public authorities have the exclusive capacity to make, and pursue, allegations of misconduct; but not in ours. Indeed, in our society allegations of misconduct are sometimes made against the police and public officials.

Secondly, it may well be in the public interest that inaction on the part of the police and prosecuting authorities be called publicly into question. It is certainly in the public interest that it is open to be called into question. The facts of this case provide an example. At least according to the Hobart Mercury, the South Australian Commissioner of Police and the Tasmanian Commissioner of Police have formed different views on the respondent’s likely responsibility for a number of murders. These may reflect legitimate differences of opinion, but why should such differences not be a matter of public knowledge and discussion, bearing in mind the respondent’s existing conviction and custodial status?

Thirdly, if the expression “trial by media” means any public canvassing by the media, outside the reporting of court proceedings, of the merits of topics which could become, or are, the subject of civil or criminal litigation, then we are surrounded by it. The idea that the criminal justice system ought to be the exclusive forum for canvassing matters of criminal misbehaviour is contrary to the way our society functions in practice.

Fourthly, a complaint that what is going on is trial by media implies that there is some different, and better, way of dealing with the issues that have been raised. Unless it be suggested that the public interest is best served by silence on the subject of the respondent’s possible complicity in the disappearance of the Beaumont children, it is not easy to see what, in the circumstances, that might be. Crawford J was willing to accept that it was likely that it would be shown to be true that the respondent was suspected of being involved in the murders of the Beaumont children. The South Australian authorities appear to have no present intention of charging the respondent with those murders. The respondent is a convicted murderer, serving a life sentence. The Tasmanian Commissioner of Police has been reported as saying that the respondent has killed many children. The corollary of the respondent’s argument is that the public should not be allowed to hear of the suspicions. Any public revelation of those suspicions is likely to be stigmatised as trial by media. The alternative is silence. The third imputation alleged is that the respondent is a multiple murderer. He has confessed to a second killing. That is a matter of public interest. The authorities have never brought him to trial for that matter, perhaps because it would be a work of supererogation. If any media outlet publishes the fact of the respondent’s confession, then no doubt it can be said that the question of his guilt is being canvassed without all the protections and safeguards of the criminal trial process. That would be true. Yet it seems surprising that the public could never be told of the respondent’s confession.

It is difficult to resist the conclusion that, in their natural and proper concern for fairness to the respondent, the judges who decided the case in his favour have fallen into the error of treating the criminal trial process as the only proper context in which matters of the kind presently in question may be ventilated. More fundamentally, however, it is apparent that they failed to take proper account of the public interest in free communication of information and opinion, which is basic to the caution with which courts have approached the topic of prior restraint of allegedly defamatory matter.

PS It’s just been pointed out to me that Justice McGrath cites this passage in the Rogers case (para 114). Useful to have that on our books.

Topics: Defamation, General, Injunctions, Media ethics | 12 Comments »

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