Letter to the editor

Professor Michael Chesterman, University of NSW

In last November's issue of Australian Press Council News, the Press Council's views on the Costs in Criminal Cases Amendment Bill 1997 (NSW) were outlined. This Bill would make media organisations liable for the costs occasioned by a criminal jury trial being aborted on account of publications which were held to be in contempt because of the risk of influence on the jury. It undoubtedly has defects, some of which I have tried to identify in an article also published in November, in the Gazette of Law and Journalism. But the Council's criticism of it is over-stated, for two important reasons.

First, it conveys an unduly broad impression of the Bill's scope of operation. It does this particularly by suggesting that it would inflict costs liability in situations such as a newspaper report of the Police Minister's comments, made last September, at the launch of a paedophilia phone-in. These comments induced two judges to abort current jury trials. But as was quickly acknowledged on all sides, neither the comments nor the press reports of them were at any real risk of being held in contempt of court. This is because they dealt with issues of general public concern and did not refer, either expressly or by implication, to the specific trials. For any costs liability to arise under the Bill, there must be both contempt liability and an aborted trial, a combination of events that as far as I can ascertain has occurred only 12 times in Australia in the last 18 years. This double requirement makes the potential scope of the Bill a good deal narrower than the Press Council's description of it suggests.

Secondly and more significantly, the Press Council's considered reaction to the Bill should have at least mentioned the considerable harm that may be inflicted by premature termination of a jury trial. The Council's role obviously includes asserting publicly the importance of freedom of the press. But it should also draw attention to those situations where misuse, deliberate or careless, of this freedom is likely to have damaging consequences for individuals. It is not simply a matter of greater cost and inconvenience. If the trial of an accused man who has been remanded in custody has to be terminated and restarted because of a prejudicial newspaper article, and the accused is then acquitted, he will have spent unnecessary and unjustifiable extra time behind bars because the newspaper did not sufficiently respect his right to a fair trial.

Michael Chesterman
Professor of Law, Uni of NSW

see also
Index on courts and contempt material

Defamation Reform
Prof Michael Chesterman responds to the Press Council's
arguments on the Defamation Bill 1995 (NSW)

Return to APC News 1998 Index

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