Theo Theophanous, the Victorian government MP who has been charged with r-pe, has been busy using the media to defend himself against his accuser. An extensive interview in last Sunday’s Age newspaper was his latest foray. In adopting such a media strategy, Theophanous might be said to be countering fire with fire. For months now he has been the subject of innuendo and police leaks to the media, all of which have painted him in a bad light.

It seems however that it is ok for when the police use the media to pursue their quarry, but when the person being pursued resorts to such tactics, they risk being charged with contempt of court, which is what Theophanous now potentially faces after Victoria’s DPP looks at his Sunday Age interview.

Whether or not the DPP decides to charge Theophanous with contempt of court is a matter for the DPP, but there is a broader policy question which is exemplified by this case and that is, do contempt of court laws need reforming, given the use which is made of the media by police and other investigatory agencies today?

Police and prosecutorial authorities in recent years in Australia have become adept at using the media to spin the public’s view of a particular individual. Mr Theophanous is himself a case in point.

It is not without significance that it was a very senior police reporter, The Age’s John Silvester, who co-wrote the first stories on Mr. Theophanous’ case in October last year. These stories alleged that Victorian police were investigating an allegation by a woman, now in Greece, that Mr. Theophanous had s-xually assaulted her ten years ago. This story, and the many subsequent stories which were published between then and when Mr Theophanous was charged, only a couple of days before Christmas, were quite obviously and openly emanating from the Victoria Police.

This is not an isolated case. When police and security agencies arrested and charged men in Melbourne and Sydney with offences under anti-terror laws in November 2005, the media was told in advance of the raids and arrests and politicians, including Premiers, held media conferences in which they made overblown claims. (Disclaimer: I appeared for one of the accused in the Melbourne terrorism trial).

So if police and other prosecutorial agencies in Australia have gone down the American path in ensuring the media gets to know if they are investigating high profile individuals or what is happening in cases of particular public significance, why shouldn’t defence lawyers and their clients do the same?

There is not a level playing field here. It is well funded police media machines and their selected media outlets against the individual who in nine cases out of ten is stretched for resources in fighting off serious allegations. That is not fair.

The law either needs to be reformed to ensure that police and other investigatory agencies which leak damaging material about an individual before charges are laid can also be prosecuted for contempt of court.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey