The New South Wales Court of Criminal Appeal has blamed the media, particularly talkback radio, for having to order a re-trial in a high profile rape case.
In overturning the original conviction the court found that “widespread publicity” about a coinciding rape trial could have influenced the jury.
The Court of Criminal Appeal questioned the relationship between lawyers and the media after it decided to quash the conviction of one of the alleged attackers and order the re-trial, finding the man did not get a fair trial.
The Crown Prosecutor involved in the case has also been criticised for speaking to the media.
The decision throws into focus the tension that is often present between courts and media, and the power struggle between the two influential social institutions. Comments in the judgement illustrate that ongoing struggle:
Another phenomenon which has contributed to the problem in recent years, especially in the media of television and radio, is the promotion of personalities who affect to convey the moral conscience of the community and to possess information, insights and expertise in exceptional measure. The image of some media personalities as informers of the public and moulders of public opinion is assiduously cultivated.
When the belief is held that the public interest is served by publication of observations and opinions by media personalities on topics of contemporary relevance, publication may not always be restrained by the need to allow a fair trial for a person charged with the commission of crimes that have attracted public attention. ………………..
The integrity of the administration of justice in criminal proceedings is of fundamental importance to a free society. Freedom of public expression with reference to circumstances touching guilt or innocence is correspondingly limited.
Other comments about radio presenters mentioned in the judgement included:
Some of the material is simply crude: as for example the comment of one radio commentator: “And I do hope they throw the absolutely (sic) book at these mongrels” or, from another radio personality: “…….. the perpetrators of this hideous crime, who are loathsome bastards”; or, finally and from yet a further radio personality: “Now these four hooligans, louts, low-life, scum, vermin, call them what you would, cannot be named, right?”.
NSW State Opposition leader John Brogden says the decision has implications for future trials and what the media has to consider when reporting cases.
He says the decision questions whether juries can be trusted to do their job:
“If the reporting by the media of any case, in any court, on any day, could adversely influence an outcome then unless we take broad steps about media reporting of judicial cases, of cases before the courts on a daily basis, then we have to deal with matters relating to the general importance of the administration of justice.”