Yesterday was one of those days in Australian legal history which should be marked on the calendar. Hopefully the day that Stephen Keim acknowledged that he leaked the record of interview of his client Mohammed Haneef to The Australian is remembered as the day when at last Australia’s justice system began to slowly creep into the 21st century and reform its contempt of court laws.
And for the record I am happy to acknowledge that I got it wrong yesterday in not believing that the AFP got it right in suggesting that the leak had not come from them, but from the defence.
Mind you, given the amount of material the AFP has provided to various newspapers in the past – including The Australian – it was a reasonable assumption. Just read, for example, The Australian on 5 May this year where Cameron Stewart and Richard Kerbaj report in great detail on the alleged activities of Tamil Tiger activists – three of whom have now been charged with providing assistance to a terrorist organisation. The report, headed “Tigers perfect money-moving skills” appears to have been written with the co-operation of the AFP, who were wrapping up a long-running investigation into the matter.
And for AFP Commissioner Mick Keelty and Attorney-General Philip Ruddock to stamp their feet in a collective display of high dudgeon yesterday about Mr Keim’s actions is simply laughable. Are Mr Keelty and Mr Ruddock also now going to investigate every leak by their own officers in terrorism cases? If so, the courts will be clogged up with contempt of court charges for years to come. But don’t worry, they have no intention of doing that — they are simply seeking to unfairly scapegoat Mr Keim.
Instead, what Mr Ruddock and State and Territory As-G should do now is begin to reform the laws of contempt and the way the courts deal with the media. The reality is that what Mr Keim did in leaking to The Australian is no exceptional case. Every day of the week journalists are talking to lawyers, police officers and government officials. Cases are being fought out in the media as much as they are in the courtroom.
The contempt laws were formulated in an era when it was easy to influence a jury. In an era when small town newspapers could ruin a person’s reputation and taint a potential jury with a juicy article or two about the accused. But those days are long gone. Juries are smarter than that today. They can read newspapers, watch TV, listen to the radio and trawl the internet every day and be exposed to information about accused persons, types of crimes and police investigations. But they also, generally speaking, have a fair idea of how to judge evidence in a professional manner and take seriously their role as jurors.
Finally, a word about the record of interview which The Australian has published. It’s tortuous reading but as Hedley Thomas, the Australian journalist who got the record of interview from Mr Keim, observed:
This leak is damaging to the official line about Dr Haneef. This is probably why Keelty, Prime Minister John Howard and Attorney-General Philip Ruddock are angrily and loudly squawking about it.