What is happening with the law of sub judice contempt? It seems to be becoming a movable feast. Instead, the legal authorities are turning to the media to police itself — and apparently being severely disappointed.

Take the reporting of the case of Arthur Phillip Freeman, the man charged with the murder of his four-year-old daughter after allegedly throwing her from the Westgate Bridge.

News reports have identified him by photograph — and in some cases, address — identified the family as parties in a family court dispute, identified his remaining children, who may be witnesses in the case, speculated on his mental state, and in one case described the Premier John Brumby “shuddering” when he heard the news of the incident.

The children’s school has been identified, neighbours and others contacted… and so on and so forth.

All this despite the fact that the man has been charged — so the case is sub judice — involves someone who is clearly suffering a mental illness and involves children who have a particular right to privacy.

Is all this okay now? Legally speaking, apparently so.

There is great concern throughout the legal community in Victoria about the impact of the reporting on the man’s trial, and also on his extended family. A number of lawyers have contacted Crikey urging us to write about it.

But it seems the law will take no action. The buck stops with ethical decisions by journalists and their editors.

A spokesperson for the Victorian Director of Public Prosecutions, Jeremy Rapke QC, said this morning that he was not at this stage intending to take any action. “An examination of how the media covered this incident is being carried out. Beyond that the DPP has no further comment.”

As for the Family Court, it seems no action is anticipated there, either. Apparently the law prohibiting the identification of parties involved in Family Law disputes is complicated when criminal proceedings are also involved. Witness the Bob Jane assault case before the Supreme Court recently.

A spokeswoman for the court said it would be difficult to establish that there had been a legal breach, but it was, in any case, a matter for the Federal Director of Public Prosecutions.

Now, the leading text book from which most journos learned their law, Mark Pearson’s Journalists Guide to Media Law, states that once charges have been laid, reporting of crime should be confined to the “bare facts of the crime … with no information that might identify the suspect or prejudice [a] future jury against him or her … stay away from witnesses.”

The test is whether reporting will have a real tendency to prejudice the case.

As for the Family Law Act, the very tough Section 121 bans accounts of proceedings that identify the parties or people related to them. There are also meant to be restrictions on the identification of children who are likely to be witnesses in proceedings.

Yet there seems to be an acceptance all round that with a story of this sort, the law must to some extent give way to the pressure of public curiosity. So what are the rules? Are there any? It really is quite pathetic.

Certainly the media should behave better, but we all know that when the competition is about to do the wrong thing, and everyone knows that no action will be taken against them, it is virtually impossible for other media not to follow suit. What is needed, in everyone’s interests, is fair and clear rules, rigidly policed.

There is room to argue about what those rules should be. Perhaps sub judice contempt should be liberalised. Common sense tells us that the neighbours and school friends of the children would already know their identities, but should the media be left to apply common sense tests to suit their own convenience?

For quite a while now there has been confusion about exactly where the boundary lies in sub judice contempt. I have written about this before. Surely this is more evidence that the law is overdue for reform, whether to strengthen it or liberalise it.

Unclear laws that shift under pressure are not in anyone’s interests.

Peter Fray

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