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QUT Law & Justice Journal |
DES BUTLER[*]
The recent trial of the man accused of setting the Childers Backpacker Hostel
Fire which resulted in the death of several backpackers, once again focused
attention on this country’s laws relating to pre-trial publicity and sub
judice contempt. The accused had been the subject of a manhunt prior to his
arrest. During the manhunt several media organisations published photographs of
the accused as the man for whom police were searching. Such images were no
longer published or broadcast after an arrest was made, at which time the laws
of sub judice contempt came into operation. Nevertheless, questions might be
raised whether publication of the photographs had any influence on either
witnesses or potential jurors involved in the case. Indeed, the publicity that
the manhunt generated was a ground relied upon by the defence in seeking a
change of venue.
The perennial problem besetting any debate concerning
the impact of pre-trial publicity on the conduct of the trial and the
effectiveness or otherwise of the sub-judice laws is that rarely if ever is such
a debate able to venture beyond mere assertion in the absence of relevant data.
This lacuna has now been addressed somewhat by a detailed study of a sample of
criminal trials conducted in New South Wales. The results and an analysis are
presented in a report entitled Managing Prejudicial Publicity: An Empirical
Study of Criminal Jury Trials in New South Wales by researchers from the
Justice Research Centre at the University of New South Wales, led by Professor
Michael Chesterman, a figure well known in media law circles.
The report
commences by placing the issue of pre-judicial publicity in its proper context
in the sense of existing assumptions about the impact of publicity on juries,
the ways in which publicity may have an impact, the context in terms of judicial
administration in the jurisdiction of the study in terms of restrictions on
publicity and remedial measures that are available and the existing research on
the impact of media publicity that has been conducted in a range of
jurisdictions including Australia, New Zealand, the United States, Canada and
the United Kingdom (Chapter 1). This is followed by an explanation of the
research methodology adopted during the empirical study including how the trials
which were the subject of the study were identified, how they were studied, the
extent of permission and access granted, how jurors were identified and
interviewed and how judges and lawyers were surveyed. The report particularises
the research instruments that were used and how issues of ethics and validity
were addressed (Chapter 2).
The body of the report then addresses issues
such as the extent of jury recall of publicity (Chapter 3), the influence of
publicity (Chapter 4), the part played by restrictions on publicity and remedial
measures within the trials which were studied (Chapter 5), professional opinions
on the effectiveness of publicity and publicity restrictions and remedial
measures together with approaches to dealing with generic publicity (Chapter 6)
and an examination of jurors’ experience of the trial process (Chapter 7).
The report then makes a number of detailed concluding observations concerning
jury resistance to publicity, the effectiveness of restrictions on publicity and
remedial measures, including suggestions for improvement of existing legal
doctrine, and suggestions regarding further research that could be undertaken.
Full details of instruments used in the study and statistics concerning data
collected on juries are also provided. A helpful summary of findings and
conclusions appears at the front of the report.
The study resulted in a
number of interesting findings. For example, jurors chiefly recall media
reports of the commission of an offence but less frequently recall reports of an
arrest of the accused or of committal hearings or other pre-trial proceedings.
This suggested that there were grounds for believing that counsel and, to a
lesser extent, trial judges overestimated the level of recall of jurors. There
were, however, three major exceptions where jurors were more likely to recall
pre-trial publicity, namely where it related to an accused person who was
independently well-known in the community, where it related to offences
committed in the area where the jurors lived and where it was not encountered
until after the trial began. Further, despite judicial instructions to the
contrary, one or more members of a jury were likely to follow newspaper coverage
of the trial itself. However, in the trials in the study that were attended by
specific publicity very few of the jurors who responded considered that the
publicity had influenced them or their fellow jurors. This contrasted with the
expectations of defence counsel in particular and of trial judges that the
influence would have been much more prevalent.
The report carefully
outlines the steps that were taken to ensure that these findings were not merely
taken at face value and to ensure the validity of comments from a number of
perspectives. In some respects the data in terms of numbers is somewhat small,
for example only six non-metropolitan Sydney trials are included in the study,
even though it might be expected that differences from metropolitan trials would
be evident. Indeed the researchers admit that such a small sample cannot be
regarded as representative (see para 159). Such quantitative shortcomings are
understandable when viewed in terms of the scope of the funded research.
Nevertheless, even on the few occasions when there is a small sample, these are
usually balanced by qualitative comments from interested parties, such as trial
judges, counsel for the prosecution and/or defence and jurors. For example,
when dealing with the effectiveness of remedial measures, the perhaps not
surprising result emerges that defence counsel were found to display
significantly less confidence in the current situation than the judges or
prosecution counsel.
The report concludes that given that high profile
trials were selected for study, the proportion in which a verdict was considered
likely to have been driven by pre-trial publicity rather than based on the
evidence presented was relatively small at a percent. It may be open to
interpret such findings as showing a relatively satisfactory level of resistance
of juries in New South Wales to publicity (see page xxi). While there would not
seem to be grounds for a wholesale dismantling of current legal restrictions on
publicity for criminal cases, the report does suggest various improvements that
could be made in the law, which are outlined by the authors. Among their
recommendations is the suggestion that the sub judice doctrine focus less on the
concept of tendency to interfere with the administration of justice and instead
seek to address the two separate questions of whether there is sufficient risk
of the jury’s encountering and recollecting the publication charged, and
whether there is sufficient risk that, if it is encountered and recollected it
exerts an influence on them (see para 508). The report also suggests that the
findings may provide some guidance to a court when considering whether to use
one of the available remedial measures. For example, the findings suggested
that relatively short delays should be contemplated to dissipate the effect of
last minute items of pre-judicial publicity and that there may be justification
for a change of venue in cases of serious high-profile offences committed in
rural areas (see para 520 and 521).
This is an important study that has
been long overdue. It has been conducted in a scientific and thoughtful fashion
that challenges the assumptions and suppositions of the past – such as the
myth that Australian juries are mere puppets or playthings of the media (see
para 542) – with hard data. In turn this data is supported by a
qualitative dimension provided by obtaining the thoughts of key players in the
system such as trial judges, counsel and jurors. The authors’ analysis is
comprehensive, well argued and convincing. They are to be commended for a
well-structured study which has been careful to avoid mere assertion and which
draws its conclusions in considered fashion. It is a study that sets a high
benchmark for future research of similar nature. Needless to say it is a work
which is deserving of the attention of both practitioners and researchers
working in the field.
[*] LLB(Hons), PhD, Associate
Professor and member of the Centre for Commercial and Property Law, Faculty of
Law, Queensland University of Technology.