On Line Opinion has an interesting article by James McConvill, a Senior Lecturer
at La Trobe School of Law on the topic of sub judice contempt – in particular The
Age’s
decision to publish the prior convictions of Thomas Towle, the alleged
driver of the car that killed and injured teenagers at Mildura.

Normally, publishing prior convictions is a
definite “no no” in contempt law – even at a time when other contempt of court
rules are breached everyday. Now it seems that this once clear rule has also
been rendered fuzzy. McConvill suggests that sub judice contempt
is a law that is no longer “clear and ascertainable”. It is therefore time for a rethink. He suggests a new rule of
“relevance”.

“Rather than having to trawl through
ancient case law to at least try and find out what we can and cannot say, the
administration of justice may be better served through a simple rule being that
any evidence that an ordinary person would consider relevant to the case at
hand should be allowed to be communicated- whether in court, or via the media.”

It might come as a surprise to the average
citizen that there are laws which, in theory, heavily restrict what the media
can report about a crime once somebody has been charged with an offence.

I train journalists in media law and find
it nearly impossible to sensibly instruct them on sub judice contempt. Teach what
the text books say and the reporters come back with copies of that day’s
newspapers in which leading journalists have done the exact opposite – not only
with impunity, but to apparent acclaim. The law is treated with – no pun intended –
contempt.

New technology also presents a challenge,
and possibly an argument for liberalisation. Often a Google, or a search of
legal sites like www.austlii.edu.au will turn up material that gives the game
away – so why should traditional media be restricted?

The law reform committee of the Victorian
Parliament is presently looking at whether the principles of the law of
contempt are certain, or “inappropriately vague”. A recommendation for
codification – a statute of contempt, as opposed to the present mish mash of
common law – is one possible outcome.

Certainly the whole area is due for an
overhaul, and preferably on a national basis.

Peter Fray

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