Your piece on sub judice and contempt of court emphasises the yawning
gap between perception and reality in the rules that restrict pre-trial
reporting.

Reporters are taught to tread on eggshells so as not to contaminate the
minds of potential jurors. We must not tell them about prior
convictions, what the police or
witnesses say about the crimes the charged person is alleged to have
committed etc. And break these rules and you and/or your editor can go to the slammer for contempt, just as Derryn Hinch did.

But any power this reporting may have to influence a jury pales in
comparison to something called the prosecution’s opening address – the
prosecution’s theory about how and why the crime took place.

Sitting in an over-airconditioned courtroom at the beginning of a
murder trial last year, it occurred to me that this quaint practice is
designed to overwhelm jury members with one side of the story. It’s
supposed to be supported later in the trial by hard evidence, but
if the facts turn out to not support the theory, well, too bad.

Witnesses might change their minds or crack under cross-examination,
mistakes might have been made in the police investigation, or
previously hidden facts might surface during the trial. Forensic
evidence relied
on by the Crown might prove to be bad science, for example.

The jury is sworn to “hearken to the evidence”. But who can say what
influence the gruesome scenario painted at the beginning of the trial,
fanciful as it may be, has on fixing prejudice against the accused in
the minds of rigid-thinking jurors?

So why not just abolish opening addresses and let the facts speak for themselves?

To the detriment of the accused, this contamination also happens with
impunity when police comment publicly on cases, parade alleged
miscreants for the cameras and ventilate the strongest elements of the
prosecution case in pre-trial court hearings.

While the most prejudicial act police can perform is to charge someone.
Just recall your gut reaction to the times when police have announced
they have arrested a suspect for a notorious crime: “phew, they’ve
caught the bastard,” you say, forgetting for a moment the presumption
of innocence.

The jury first sees the accused person sitting in a cage (the dock)
guarded at all times by at least one person in a uniform. The prisoner
looks guilty from the start. The normal human reaction is to think: the
cops reckon he did it, so he did it. Then the prosecutor unrolls what sounds like a damning case, previewing
and forecasting all its highly prejudicial “evidence” before a word of
real evidence is heard.

Peter Fray

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