Contempt is contempt is contempt. The Supreme Court injected a welcome dose of clarity into the muddy area of sub judice contempt in a judgement by Justice Cummins last Friday.

The Age won’t thank him. The paper got a $75,000 fine for publishing, last February, the prior convictions of a man facing charges.

But for those of us who have been wondering what to make of sub judice contempt these days, the judgement draws some nice clear lines. If you publish prior convictions, you are almost always going to be in trouble. Doesn’t matter how long it will be before the trial, doesn’t matter how prominent the case might be.

The Age defence was that it took legal advice before publication. That advice, spelled out in court, summed up the realpolitik of contempt law at the moment – which led The Age lawyer to conclude that it was OK to publish in this case.

The legal advice said there has been a “significant trend in recent years” for police reporting to include the histories and backgrounds of accused people before their trials, and that no action has been taken.

“Rather, by inaction, there (appears) to be a tacit acceptance of the proposition that… the effect of negative publicity would dissipate over a period of many months.”

I’ll say. I teach media law to young journalists, and find my job increasingly difficult. No sooner have I spelled out the “bare facts” principle and what the textbooks say than some newspaper or other, working under this “tacit acceptance”, breaks all the rules with apparent impunity. What am I meant to say to the students?

There is now a significant gap between the media law textbooks and common media practice. This isn’t good for anyone.

Justice Cummins said The Age legal advice, while considered, was wrong.

His Honour didn’t have to consider whether other published details, going well beyond “bare facts” reporting, were contemptuous. The case proceeded purely on the issue of publication of prior convictions.

On this Justice Cummins said:

The simple and clear beacon is that every accused person is entitled to a fair trial… Ordinarily, publication of prior convictions and custodial history while a trial is pending is antipathetic to a fair trial. Thus it is contempt.

Thank you, Justice Cummins. It would be nice if we could have some equally clear statements on other breaches of the “bare facts” principle. Or, failing this, serious law reform to clarify the area for everyone.

Peter Fray

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