It is about time someone said it and one of Victoria’s most senior appeal court judges, David Ashley, was the perfect messenger: The treatment of criminal investigations and proceedings by elements of the media in this country has now become so shrill, so unfair and so sensational that it is getting harder and harder for people to get a fair trial because no potential juror could be expected to have put totally out of their minds such coverage.

Justice Ashley’s comments were made in the context of one such case — that of Peter Dupas, who yesterday had his conviction for the murder of a young woman in Fawkner Cemetery in 1997 set aside and a retrial ordered. Mr Dupas has been regular fodder for some of the media over the past decade. His previous criminal history, which includes convictions for rape and murder was constantly highlighted by the Herald Sun, The Age, television programmes and internet sites, in the lead up to his trial in 2008. The media convicted Dupas, through their descriptions of him as a “monster” “evil” and other pejorative terms in articles that linked him to the 1997 Fawkner Cemetery case.

Currently judges will only stop a criminal trial going ahead in the most extraordinary circumstances. Pre trial publicity must be of such an extreme nature of over such a lengthy period that the right to a fair trial is simply gone.

But Justice Ashley is musing how the law deals with irresponsible media determined to convict in the court of public opinion.

“Nor can it confidently be predicted that, in the face of the increasing and seemingly unassailable trend of interference with the due administration of justice by tendentious pre-trial publicity, the law will not come to tolerate a higher risk of prejudice than that which is now tolerated,” Justice Ashley observed.

Justice Ashley understands the fact that jurors are ordinary people who read, watch and surf the Internet. Of course, subconsciously at least, they are going to have some views or prejudices about a high profile case when they enter the jury box.

Dupas is not the only example of the “unassailable trend of interference with the due administration of justice” in Australia in recent times. Last month’s arrest of persons in Melbourne on suspicion of having committed terrorism offences was another.

The Herald Sun’s Patrick Carlyon opened a story about that matter with this line: “If one street in Glenroy is a nursery for terrorism…” Meanwhile, callers lit up talk back demanding tighter migration to keep out “terrorists”.

So what can be done to redress the balance?

The police should be restricted in what they can say about the alleged offenders and alleged circumstances of the offence. They should face criminal sanctions if they leak “evidence” to friendly media outlets and journalists, which may not be admissible in a court but which is highly damaging to the accused’s reputation. Police and security agencies must stop running their cases against individuals through the distorted lens of the media.

Current contempt of court laws do not to cover such commentary when it is made before a person appears in a court — we need to consider clarifying the law of contempt to ensure that it applies from the time a person is under formal investigation.

Justice Ashley’s warning is clear evidence that the courts are getting sick and tired of the media, fed by politicians and the police, failing to exercise their right to freedom of speech without grossly interfering with the rights of the persons being investigated.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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