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Trial by Media – Good or Bad?

A defendant should be considered innocent until proven guilty.  All defendants have a right to a fair trial,[1] which requires a verdict made by an impartial jury.  The jury must determine the defendant’s guilt using the evidence shown to them in court, but this can be difficult if the case has received widespread media attention before the trial has even begun.

In high-profile cases the media may make unfounded comments about a defendant which can negatively influence the juries’ views about the defendant. [2]  Ultimately, it is the accused who can end up in prison if they are wrongfully convicted by a jury.  So, making sure the defendant receives a fair trial is essential. 

Suppression Orders

Suppression orders are court orders which prevent the media from publishing information about a case while a defendant is being prosecuted.  There is strong support for suppression orders to be used when necessary, to ensure a fair trial.  They are a useful mechanism to prevent a jury from seeing reports which could impact how they view a defendant.  For example, the defendant may be a high-profile celebrity, or the case may be unique or shocking in such a way that it piques the public’s interest and becomes a source of news and entertainment for the media to report on – this is trial by media.  There have been many cases of trial by media in Australia.  Some of the most famous are discussed below.   

 

Lindy Chamberlain

In 1980, Lindy Chamberlain, her husband, and their baby Azaria were camping in the Northern Territory.  A dingo entered their tent and set off with the baby, who has never been found.[3]  Deemed Australia’s biggest miscarriages of justice[4] - Chamberlain was charged and wrongfully convicted with the murder.  Thankfully, she was released from jail three years later, after evidence was discovered, proving her innocence.[5]

The trial received more publicity than any other trial in Australia – it was even turned into a documentary, ‘Dingo’s Got My Baby: Trial by Media’.[6]  The majority of the publicity on Chamberlain was negative,[7] potentially impacting the juries’ opinion of her.  Making a suppression order would have protected Chamberlain from a trial by media and helped to ensure she was tried by an impartial jury.

 

Ben Roberts-Smith

Ben Roberts-Smith is an esteemed Australian solider.  He has received many professional accolades including the highest military honour award; the Victorian Cross.[8]  In 2018, allegations surfaced that while Roberts-Smith was working in Afghanistan, he kicked a civilian Afghan man off a cliff.  This is a serious crime under international humanitarian law, and the allegation is now being investigated by the Australian Federal Police. [9]

The Age and the Sydney Morning Herald have referred to Roberts-Smith as a ‘war criminal’.[10] Depicting him as a guilty man, even though his guilt has not been proven in court.  This is Roberts-Smith’s trial by media – before he has even faced a criminal trial.[11]  The portrayal of him as a war criminal risks corrupting future jurors and has led Roberts-Smith to sue the newspapers for defamation.  

 

George Pell

In 2018, a unanimous jury convicted Cardinal George Pell of sexually assaulting two boys in a church in 1996.[12]  In April 2020, the conviction was overturned by the High Court of Australia and Pell was freed from jail.  It was the most famous case since Lindy Chamberlain’s.  However, unlike the Chamberlain case, the proceedings were conducted in secret.  The suppression orders prevented publications relating to the case until the jury decided whether Pell was guilty or not.   

It was always going to be hard to empanel an impartial jury, due to Pell’s fame and the public shock following the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse.[13]  The risk of excessive media publicity justified the use of suppression orders to help the jury be as impartial as possible.  There was a lot of outrage over suppressing Pell’s trial.  However, making a suppression order was not a reflection of the crime itself – rather, it was about ensuring the defendant received a fair trial with a jury that was as impartial as possible.[14]

 

Role of the Media

We must remember the default position, that courts are open for everyone to view, suppression orders are only made in exceptional circumstances.  The media plays an important role in disseminating information about complex court proceedings, making them more accessible to the public.  However, we must also remember, it is not the media’s role to administer justice.  Media organisations may also be guided by other motives, such as financial gain, number of clicks, entertainment or the ‘newsworthiness of a story’.[15]  Meaning they may report facts in a dramatised or subjective way to generate more exposure.  For this reason, suppression orders should be made when it is likely that a fair trial will be corrupted by a trial by media as well. 

 

It is imperative, that the jury determine the defendant’s guilt based on evidence presented to them by the court.  Not based on media reports underpinned by, perhaps, other intentions.  A fair trial for the defendant should be paramount.  The media is free to report on the case once a decision has been made and the suppression order lifted.[16]



[1] Dietrich v The Queen (1992) 177 CLR 292, 298. 

[2] Marco Lopresti and Andrew Burke, ‘Suppression Orders in Criminal Trials: Still Necessary in the Digital Era’ (2021) 45(1) Criminal Law Journal 18, 18-9.

[3] Michael Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt with in Australia and America’ (1997) 45(1) American Journal of Comparative Law 109, 109.

[4] Katherine Biber, ‘The Archival Turn in Law: The Papers of Lindy Chamberlain in the National Library of Australia’ (2017) 39(3) Sydney Law Review 277, 277.

[5] Katherine Biber, ‘The Archival Turn in Law: The Papers of Lindy Chamberlain in the National Library of Australia’ (2017) 39(3) Sydney Law Review 277, 278.

[6] Belinda Middleweek, ‘Dingo Media? The Persistence of the “Trial by Media” frame in popular, media, and academic evaluations of the Azaria Chamberlain Case’ (2017) 17(3) Feminist Media Studies 392, 392.

[7] Ibid 393.

[8] Carrie McDougall and Michael Bachelard, ‘Shining the Spotlight: Why we Reported that Ben Roberts-Smith was Under Investigation’, The Sydney Morning Herald (online, 27 September 2019) <https://www.smh.com.au/national/shining-the-spotlight-why-we-reported-that-ben-roberts-smith-was-under-investigation-20190925-p52uqo.html>.  

[9] Nick McKenzie and Chris Masters, ‘Ben Roberts-Smith Under Police Investigation for ‘kicking handcuffed Afghan Off Small Cliff’ The Sydney Morning Herald (online, 22 September 2019) <https://www.smh.com.au/national/ben-roberts-smith-under-police-investigation-for-kicking-handcuffed-afghan-off-small-cliff-20190910-p52pys.html>. 

[10] Christopher Knaus, ‘Ben Roberts-Smith Defamation Case: Ex-Soldier Ordered to Hand Over War Crimes Inquiry Document’, The Guardian (online, 11 November 2020) <https://www.theguardian.com/australia-news/2020/nov/11/ben-roberts-smith-defamation-case-ex-soldier-ordered-to-hand-over-war-crimes-inquiry-documents>.

[11] Ben Doherty, ‘Australian Federal Police Investigating Fresh Allegations Against Ex-Soldier Ben Roberts-Smith’, The Guardian (online, 14 April 2021) <https://www.theguardian.com/australia-news/2021/apr/14/australian-federal-police-investigating-fresh-allegations-against-ex-soldier-ben-roberts-smith>.

[12] François Kunc, ‘A Cardinal is Convicted’ (2019) 93(4) Australian Law Journal 251, 251.

[13] Guardian Staff, ‘The Legal Trials of George Pell’, The Guardian (online, 7 April 2020) <https://www.theguardian.com/australia-news/2019/feb/26/rise-fall-george-pell-timeline>.

[14] François Kunc (n 12) 522.

[15] Colleen Davis, ‘The Injustice of Open Justice’ (2001) 8 James Cook University Law Review 92, 100.

[16] Michael Chesterman, ‘Criminal Trial Juries and Media Reporting’ (2004) 85 (Summer) 23, 26.

 

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