The
truth is that most media have been pushing the envelope on contempt for
a long time. The reporting of gangland killings in Melbourne is just
one example of the media engaging in an orgy of prejudicial
reporting, right down to repeatedly describing defendants in legal
proceedings as “underworld figures.”

Perhaps the most obvious recent example was the story in last Wednesday’s HeraldSun about Bendali Debs, who is about to be charged with murdering a young woman in 1997: “Police Killer to face trial despite win.”
Would this description of Debs as a convicted police killer throughout
the article – and repeating the story of his role in the murder of two
police officers – influence potential jurors? Of course, but it’s
unlikely this effort will land the paper in hot water.

Why?
Because editors have been pushing the boundaries since a decision in
Victoria’s Supreme Court in 1990 when 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.

It’s more than likely that the Herald Sun’s lawyers, like those at TheAge,
have cottoned on to this fact and are advising their clients
accordingly. So the common law principles which used to be among the
first drummed into reporters that 1) once charges have been laid think
very carefully before discussing details of a case and 2) never publish
the accused’s prior convictions or you could be hauled before a judge
and charged with contempt, are no longer clear-cut.

And that’s a
problem. Any law that people can’t understand is a bad law. Reporters
have no realistic way of knowing what they can and can’t do because
these days it depends on so many things beyond their control –
including a guesstimate of how long charges will take to go to trial
and even an assessment of the personality of the judge hearing the
case. Meanwhile, some judges are getting so anxious about what
reporters might do they’re introducing precautionary suppression
orders, a terrible precedent that should seriously concern anyone
interested in open justice.

Our current contempt laws emerged at
a time when newspapers were one of very few sources of information and
their reports carried incredible weight. The proliferation of media has
had the dual effect of making individual stories in print and
electronic media both less influential – and therefore prejudicial –
while making the prospect of realistically controlling the media much
more remote.

Judges need to recognise that the world has changed
and get creative about how they can better select and instruct their
jurors to ensure defendants get a fair trial.

It’s time to rethink the whole thing.

Peter Fray

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