Dennis Ferguson has been accorded justice. Mr Ferguson was acquitted last Friday by Queensland District Court judge Patsy Wolfe of one count of indecent assault. Ferguson did not face a jury, but only a judge — an unusual course in a criminal trial.

But it was the gross irresponsibility, harassment, and hysteria generated by the national media about Ferguson last year that ensured this was the case. Perhaps we ought to think seriously now about abolishing jury trials in Australia altogether, if the media is going to continue to behave in the way it did in the Ferguson case.

Ferguson won the right to a permanent adjournment of s-x charges laid against him because a Queensland judge found last year he could not get a fair trial due to saturation media coverage. That decision was overturned in the Queensland Court of Appeal, and the Bligh government’s Attorney-General Kerry Shine confidently asserted that you can get a fair jury trial in Queensland despite the media’s best efforts to undermine the presumption of innocence.

But when Ferguson’s lawyers applied for a judge only trial, the Queensland government lawyers did not oppose the move — undermining Shine’s position.

Ferguson was acquitted, but would it have been a different result if a jury had heard the case? Maybe, and even probably, is the answer. Ferguson was subjected to extraordinarily prejudicial coverage last year, when national morning TV programs like Today and Sunrise allowed coverage of ignorant and angry mobs who objected to Ferguson living in their area. The Gold Coast Bulletin shamefully called Ferguson a “monster”.

Is it realistic to think that every member of a jury would have been uninfected by this coverage?

But a judge alone trial is a different proposition. Judges are, theoretically anyway, trained to ignore all influences, to judge only on the facts before them, and not to be swayed by community prejudice. In a case like Dennis Ferguson’s, his lawyers were right to seek a judge alone trial.

The rise of the Internet, social networking sites like Facebook and sensationalist media with no regard to privacy or legal principle has meant that it is getting harder and harder to ensure that jurors come to the case they judge without in some way being tainted.

Our politicians are craven and cowardly when it comes to this issue. They refuse to take steps to stamp out media excesses and abuse. They often fuel the fire themselves in order to curry favour with the law and order lobby.

All in all, the climate is such that jury trials in criminal law could be discarded. We at least ought to examine the possibility in cases where the media has, as they did with Mr Ferguson, poisoned the atmosphere to such an extent that it could not be said that a person on the jury, unless they had been living on Mars, did not hold views that were informed by that media coverage.

Ironic, isn’t it, that those elements of the media that so wanted to hang Ferguson before his trial, have helped to get him acquitted!

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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