Victorian Attorney-General Robert Clark will be asking his interstate colleagues this week whether any of them have any “bright ideas” to combat the impact of social media on criminal trials.
The sense of urgency follows the murder of ABC employee Jill Meagher last month. The discovery of her body triggered a surge of prejudicial cyber commentary on social media sites, prompting fears the accused murderer, Adrian Ernest Bayley, would not get a fair trial. Clark has instructed his department to quickly come up with some ideas before Friday’s meeting of the state and Commonwealth Attorneys-General in Brisbane.
But the scramble for a solution has highlighted just how unprepared all the states are, despite the growing awareness that the courts are failing to keep pace with advances in social media. A spokesperson for Clark told Crikey this morning:
“I think there is a desire to discuss it and to see whether anyone has any ideas and certainly any ideas that can be pulled together at this end before he goes will be put to the meeting. But there’s also recognition that it’s not something for which solutions are readily available. Frankly, if I was an Attorney sitting in that room I’d be a little bit curious about whether anyone had any bright ideas as well.”
The police and the courts have been impotent in the face of the social commentary following Meagher’s death. Facebook defied police requests to close down at least six sites that have continued to publish material in breach of current contempt-of-court rules. Pleas to curb the commentary, from Meagher’s grieving husband, appear to have done little to stop it.
So what are Clark’s options? According to legal commentators, they are quite limited. Either the courts have to work much harder at controlling what is published by enforcing contempt-of-court laws or they have to learn to live with the fact that juries cannot be quarantined from social commentary.
Most commentators now agree that enforcing contempt laws in cyber space is nearly impossible and that the courts need to accept that juries are increasingly capable of assessing the facts in complex cases, despite the influence of negative commentary.
Melbourne University law professor Andrew Kenyon puts it like this: “There is a gradual recognition that if jurors hear some things outside the courtroom they can put it aside. In the past it was like they could never hear anything. Courts would say ‘we’ll have to get a new jury’. Now there is more recognition that with better instruction jurors will try to do their job.”
He says the courts should show greater trust in juries, while working harder at instructing them to disregard prejudicial information about the accused. “My inclination would be to look for ways to instruct juries and to quiz and investigate juries more than is currently being done. We should look at ways of finding and instructing juries so that the parties involved are confident that they are working,” he said.
One option is to suspend jury trials altogether in sensitive criminal cases. This is not without precedent. The recent trial of Perth barrister Lloyd Rayney has been conducted without a jury, in part because of the extent of negative coverage following the murder of his wife Corryn Rayney. That case has been handled by the NSW Director of Public Prosecutions and presided over by a former NT Chief Justice, in order to give the Western Australian law officer a fair trial.
Jury trials are not sacrosanct in civil matters either. South Australia and the ACT manage without them. In fact, in some cases it can be argued that the absence of a jury ensures a fairer result.
But this option has been ruled out by the Victorian Attorney-General. His spokesperson said: “For us it’s the thin end of the wedge. Either you trust juries or you don’t.”
Clark has also suggested a national approach. “I think that is very sensible,” says Kenyon. “It would build on the work that was finally done in defamation where there is a national and uniform approach.”