Crikey editor Misha Ketchell writes:

The long-standing
legal convention preventing the media from publishing the previous
convictions of anyone charged with a crime has been hurled out the
window by The Age.

The common law principle, which dates
back to the late 19th century, used to be among the first drummed into
newbie reporters: once charges have been laid 1) think very carefully
before discussing details of a case and 2) never publish the accused’s
prior convictions or you will hauled before a judge and charged with
contempt of court for jeopardising a fair trail.

But yesterday, The Age flouted the convention by splashing on its front page
the prior convictions of Thomas Towle, the Mildura man facing court
following the collision last Saturday night that claimed the lives of
six teenagers. Towle faced the Mildura Magistrates’ Court on Monday on
six counts of culpable driving causing death, four counts of
negligently causing serious injury and failing to stop and provide
assistance at the scene of an accident.

The decision to publish
Towle’s record surprised many media watchers and prompted Victorian ABC
radio presenter (and former lawyer) Jon Faine to comment that he didn’t
want to say too much in case he ended up sharing a cell with Age editor Andrew Jaspan.

When Crikey tracked down Jaspan yesterday he wasn’t in handcuffs or in
hiding. He said the paper had published Towle’ s convictions because
they were a matter of legitimate public interest and the story had been
thoroughly checked by the paper’s lawyers.

Age
legal eagles Minter Ellison wouldn’t comment on their legal advice, but
anyone watching the coverage of the Melbourne gangland prosecutions may
have noticed newspapers starting to test the limits of contempt laws
last year when they published the long list of
previous convictions racked up by underworld figures facing trial.

The
reason for this newfound boldness seems to hinge on a question of timing. This follows a
decision in Victoria’s Supreme Court in 1990, during which Justice Cummins
suggested that, as a rough rule of thumb, after about six months, the
damage of publishing prejudicial information – like prior convictions –
is undone by the passage of time.

These days, most major cases
take much longer than six months to go to trial, so editors are
increasingly prepared to push the boundaries of what they publish. But
it’s not something many in the media want to discuss openly for fear of
provoking judges to take action.

Peter Fray

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