A Fair Trial?

Prof David Flint asks whether out traditional methods of ensuring a fair trial can stand up to improvements in technology.

The massacre at Port Arthur is not only forcing a review of our gun control laws. It is challenging the traditional methods by which the law attempts to ensure that an accused has a fair trial. Indeed, modern technology is undermining the viability of the media quarantine hitherto imposed on a criminal trial. That quarantine is based on two justifications.

The first is that we cannot rely on the ability of jurors to base their decision solely on the evidence admitted at the trial. So the media's wish to inform the public, and the public's wish to debate the case, must be restrained. Otherwise a potential juror could see or read coverage of the matter and be tainted. Judges, because of their training, do not, so the argument runs, need this protection. The USA sees no need for such a quarantine, nor do many other countries. The Americans try to find a jury which knows nothing about the case or is not interested at all in it. Sometimes the trial is moved. But what do you do when the case concerns a celebrity? There is now an argument, which seems to be gaining support, that it is better to find a jury, however well informed, which is capable of putting aside irrelevant material.

The second reason for the quarantine arises from cases where identity may be in issue. The argument is that a witness' recall will inevitably be contaminated if he or she is exposed to, say, a newspaper photograph. So the media must not publish (or broadcast) these if identity is likely to be in issue. (If identity subsequently is not in fact an issue because the accused pleads guilty, the media would still be in contempt.)

Research indicates that we have to be very careful with people's recollections. So it is just as well that the common law allows a rigorous cross-examination of witnesses by other lawyers. Presumably the effect of any subsequent corruption can be detected during this process. But it can be argued that any such corruption may not only be the result of media actions. The practice of the police showing photographs to witnesses, or a police lineup, could have an effect on a witness. Even seeing the accused in court, especially in custody, could be persuasive.

The Port Arthur case

There has been a debate as to whether the publication of photographs of Martin Bryant breached this rule. The media argue that in this case identification is not likely to be an issue. There is a view expressed (co-incidentally in a Tasmanian case) that identification will almost always be in issue. The result would be that publication could only be allowed where identification could not possibly be in issue. (For example, where a driver had been involved in an accident resulting in death, and the only issue was whether he was intoxicated or not.) This interpretation changes, even negates, the meaning of likely. It would stop publication wherever there is a remote possibility, however unlikely, of identification being relevant.

There is, understandably, an insatiable demand from the public (and not only in Australia) for information about the Port Arthur massacre. This is not only to try to understand the evil which was unleashed there. It extends to attempts to find answers about our public policy in mental health, about gun control and about the roles and duties of our law enforcers and of our legislators. This demand is testing as never before the two justifications for our media quarantine.

An ideal juror

The protection of potential jurors is the weaker one, and more likely to give way. There are obviously Australians able and willing to do their duty as jurors and to put aside media exposure in the same way lawyers and judges can. If there is any doubt about this, let us remember the dedication exemplified by those courageous people who tended to the suffering at Port Arthur. Such as the nurse, Lynne, interviewed recently, who came out from hiding behind a bus to do even more than duty required. Her courage, her wisdom and her modesty tell us that there are Australians who in the face of extreme danger will go beyond their duty and do what they believe is right. A person like Lynne would be an ideal juror.

But whatever pressure comes from the Australian media to test the quarantine, the world-wide interest that has been sparked by the tragedy will not stop the international media. They will simply ignore the quarantine. This does not necessarily mean that they will behave irresponsibly. For example, the international broadcasters like the BBC and CNN are highly ethical organisations. The advent of the new technology means that we cannot now assume that the jurors, as well as the witnesses, will not have been exposed to the media outside Australia.

New technology

Technology is lifting the natural barrier that protected us from, perhaps, the most dangerous medium to the rule - television. BBC World Television, and probably CNN, have already shown still photographs of the accused. Both services are now available in Australia on cable. We could require the cable operator to monitor all news and jam offending scenes and comments in the unlikely event that the BBC and CNN agreed. But what would we do when satellite television is generally available in our homes as it now is in the UK and India? Would we ban satellite dishes as a handful of countries do?

The Anglo-Australian notion that you must quarantine the media to ensure a fair trial is not accepted in a number of civilised countries. Its relaxation does not necessarily result in trial by media. The media, unrestrained by the rules, is quite capable of maintaining responsibility. They did so in the trial of Eichmann and they are doing in reporting the Bosnian War Crimes Tribunal in The Hague where the accused are being identified world-wide. Indeed, many of the excesses in the US come not so much from the media but from some lawyers behaving irresponsibly. The Anglo-Australian quarantine is based on assumptions which are debatable. But in cases of notoriety, the time for debate is passing.

As it was technology which enhanced the possibility of one man committing a massacre on a scale hitherto unknown, it is technology which is challenging the viability of the comfortable protective veil which once so automatically protected our criminal justice system.

see also
Index on David Flint's material on the website

Index of Material on Courts and Contempt

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