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DomPost column on contempt case

Just before publishing the famous front-page story on the October 15 raids – the story that landed Fairfax with charges of contempt of court – Fairfax sensibly went to its lawyers for advice. “It was along the usual lines,” Dominion Post editor Tim Pankhurst explained later. The lawyers had said: “There is risk but on balance we think you can get away with it – but it will be on your head.”

This might strike you as rather cynical advice. It might also seem rather vague. You might think that lawyers should be able to come up with something a bit more helpful than that for their fees.

But you should remember two things. First, the law of contempt of court is notoriously ill-defined. It can be used to penalise anything that “prejudices the administration of justice”. Applying that rule to specific circumstances is like trying to bottle a cloud.

The strand of contempt of court at stake in the Fairfax case, known as sub judice contempt, is also very nebulous. It stops the media publishing anything that has a tendency to create a real risk of prejudice to the fairness of a trial. Read that sentence again. It’s befogged with airy concepts. Its application is unpredictable. Media lawyers are often reduced to giving the same advice Fairfax’s lawyers gave. I’ve done so myself.

The second thing you should remember about Fairfax’s legal advice: the lawyers got it dead right. There was risk, but they did get away with it.

Is this a ringing endorsement for freedom of expression? And reading the judgment, do the media now have a better idea of what’s allowed and what isn’t?

No and no, I think.

Certainly, the judges have shown that they will be leery of finding that the media have created a “real risk” to the fairness of a trial, at least when there’s a lot of other prejudicial material around and the trial is likely to be a long way off. They also expressed confidence in the ability of juries to put this sort of material out of their minds.

The upshot: it’s hard to imagine what might taint the minds of potential jurors if the sensational quotes published by Fairfax didn’t. On the face of it, anyway, that seems a step forward for freedom of expression.

On the other hand the judges warned that it shouldn’t be taken as licence to do it again. They don’t appear to think they are restructuring the law to make it more friendly to the media.

And although they keep mentioning the high public interest in what was published, they also cite a key case that says public interest can never justify creating a risk to a fair trial.

What’s more, the judges emphasised the things that made the story dangerous: its sensationalism, its high impact, its detail, its lack of balance, its quoting of communications intercepted by police that, by law, couldn’t be used against the defendants at trial and should never have been told to jurors.

Those factors are all clearly still relevant to evaluating whether there’s a real risk, so they still make a lawyer’s job perplexing.

Finally, the case must have cost Fairfax, um, a bomb. And given that the judges criticised Fairfax for breaching suppression orders and the Crimes Act, they may not be very sympathetic to an application from Fairfax for costs. This speech wasn’t exactly free.

I see this case as a lost opportunity to properly tether our vague contempt laws to the more precise social science research regarding jurors’ memories. Two of the world’s leading experts gave evidence, but in the end, the judges decided to decide the case on the basis of their own experience as trial judges.

Judges routinely say that the social science research isn’t very helpful. But I think it tells us a lot about what sorts of coverage creates the sort of prejudice that’s likely to stick in the minds of people and taint their views if they later become jurors. Mostly it suggests that the risks aren’t big. One-off stories don’t generate much prejudice. Interestingly, stories published during a trial aren’t usually harmful (jurors just laugh at the inaccuracies), unless they contain information that jurors aren’t allowed to see. Jurors tend to forget the details of stories quickly.

On the other hand, potential jurors do tend to remember stories that evoke a strong emotion, affect their sense of community and welfare, involve public figures, and are reinforced by earlier stories and, in turn, fuel gossip. It’s the interplay of media coverage and gossip that matters, and the combined effect of different forms of prejudice.

Until our contempt laws are rejigged to square with what research reveals the real risks are, lawyers will have to keep giving the same advice: “there’s risk, but on balance we think you’ll get away with it”.