Media as a non-legal repsonse: The good, the bad and the murky

This resource examines the role and influence of media on various aspects of the legal system and the impact on the achievement of key rule of law principles.

Introduction

The media plays an important role in the legal landscape. It acts as an intermediary between the public and the courts. Media has the power to provide scrutiny, accountability and transparency of legal processes, raise public awareness and foster knowledge of legal process. It can create attention for issues of concern to the community and create a forum for the law and its administration to be open to criticism to improve outcomes for the individuals and the community. However, media involvement can create negative bias, impacting upon the presumption of innocence, jury impartiality and fairness in trials. These aspects of justice and the rule of law are recognised as common law rights in Australia, and are protected under international law in Article 19 of the Universal Declaration on Human Rights (UDHR) and Articles 14 and 19 of the International Covenant on Civil and Political Rights (ICCPR).

Media: the good

Scrutiny, Accountability and Transparency

“Publicity is the very soul of justice... the surest of all guards against improbity. It keeps the judge himself, while trying, under trial… Without publicity, all other checks are fruitless.” Jeremy Bentham, 1790

Open justice

One of the key roles of journalists and the media is to provide a forum for discussion, analysis and criticism of the arms of government on behalf of the people of a democracy, enabling transparency and accountability. In the courts, this role is supported by the principle of open justice. Evidence of open justice can be found in the UK dating back to Saxon and Norman times, with news media identified as emerging in the 1600’s.

The key functions of open justice are:

• to inform the public of what is happening in the courts and how justice is being administered

• to expose participants to public scrutiny enhancing truthfulness and ensure accountability of the courts for the decisions made

• to provide public vindication for relevant parties and the community (the ‘therapeutic function’)

Open courtrooms, publicly available judgments, public access and media reporting on cases ensure that those responsible for pre trial, in-trial and post-trial legal processes are accountable to the people for accuracy, fairness and appropriateness in decision making. This upholds the principle of fair trial and creates the ability for either party to appeal if they feel the decision did not comply with legal principles.

Courts also have the jurisdiction to adapt the rules of open justice and can exercise discretion to close court rooms, supress reporting or impose a non-publication order to avoid interference in justice being served.

These measures are usually taken to protect the identity of people in sensitive matters, such as sexual offences, matters of national security, and children under the age of 16 involved in proceedings in some capacity. Courts can also allow media access to a closed courtroom or to view, hear or have access to a transcript of the testimony given at a later time. These provisions enable the courts to balance the need for open justice with the need for individuals involved in sensitive matters to be protected.

Case Study - Witness J - ACT Supreme Court

In 2019, a prisoner identified as Witness J was tried in the ACT Supreme Court in a secret trial for national security offences. He had been working as a military intelligence officer throughout the defence network. At the conclusion of the trial, he was sentenced and imprisoned, with all details of the matter supressed from public availability. Two members of the media noticed the secretive nature of the proceedings and, after enquiring, were told by the presiding judge, Justice John Burns, that although undesirable, the closure of the court and suppression of all documents was considered to be in the interests of protecting national security and outweighed the need for proceedings to be open to the public.

Free press and the freedom of speech

“Freedom of expression is a fundamental human right… But around the world, there are governments and those wielding power who find many ways to obstruct it…People have a right to information that affects their lives, and states have a duty to provide this information. Such transparency is essential to good government.” Ban Ki-Moon

“A free press is the most legitimate, and, at the same time, the most powerful weapon that can be employed to annihilate such [individual] influence, frustrate the designs of tyranny, and restrain the arms of oppression.” Robert Wardell, 1824, first editor and proprietor of The Australian newspaper.

The rule of law requires that freedom of speech allows for the people to provide feedback and be critical of all arms of government. A free press is a vehicle for public opinion to provide scrutiny and accountability. The media has the unique position of being able to educate and inform the public, the Parliament, the Executive and the Judiciary regarding need for change in legal processes or regulations. They can advocate for change and give voice to issues that may otherwise be unnoticed or give weight to causes that may affect smaller groups in the community who are struggling to gain support or raise awareness. Media coverage can also influence government policy change to occur in response to publicity on a given issue, particularly where it generates strong public sentiment.

Informal Justice

Media generated podcasts can act as an informal (non-legal) avenue for justice and can work with formal legal processes to further or resolve unsolved cases. Coverage of such matters can lead to the discovery or examination of evidence not previously analysed or witnesses coming forward, enhancing just outcomes for victims and society. They can also raise public awareness of system failures and lead to improvements in criminal investigation or trial processes by increasing accountability for actions and the integrity of justice system processes.

Case Study - Trace, ABC (2017-2018)

This seven-episode investigation into the murder of Maria James in 1980 in Melbourne, narrated by investigative journalist Rachael Brown, led to a witness coming forward who had not done so during the initial investigation. It was also revealed that a key piece of physical evidence had in fact come from another crime scene and been mixed in with the evidence for the James case.

Considering this new information discovered by the podcast investigation, the Victorian Coroner ruled to open a new inquest in 2018. The inquest concluded with an open finding in March 2022 but identified two key persons of interest and found that many aspects of evidence mismanagement by Victoria Police contributed to a lack of prosecution.

Public Awareness

Media plays an important role in keeping the public informed about legislative shortfall, review, creation, and reform.

Although many documents regarding these processes are publicly available through parliament and relevant government departments (the Executive), the media provides a more condensed version that will generally summarise relevant aspects for the public, creating more easily digestible information and potentially increasing engagement in sections of the community. This may also act to increase knowledge and accessibility, potentially reducing community non-compliance when new legislation is introduced, or existing legislation is reformed.

Media reporting on matters of legal importance acts to raise community awareness and creates transparency in the processes of legislative design, administration and reform. Enhanced awareness may encourage and enable citizens to become more actively involved in other democratic processes.

Case Study - NSW ICAC

Journalists, such as Chris Merritt (Vice President of the Rule of Law Education Centre), regularly write about the need for reforms in social and legal policy to address issues of government bodies over-extending their powers beyond their jurisdiction. His regular commentary on NSW ICAC has created public awareness of a statutory authority operating outside of its jurisdiction with regularity, identifying a need for the NSW government to review and amend policies and procedures to improve the compliance and efficiency of ICAC.

Case Study - Podcast: The Teacher’s Pet - The Australian Newspaper (2018-2019)

Available for approximately 11 months between May 2018 and April 2019, the serial podcast attracted enormous amounts of attention across the globe. It reignited public interest in the case in Australia, particularly given the timing of release 5 months after the findings and recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse were handed down.

The podcast investigated the case of the disappearance of Lynette Dawson, whose husband, Mr Christopher Dawson, was, at the time, having an affair with a 16-year-old. Great public interest, commentary and pressure resulting from the publication of the podcast forced the NSW DPP to bring action and reopen the case, resulting in a charge of murder being laid against Mr Dawson, instilling trust in the justice system to respond to matters of concern to the community.

Case Study - Legislative and Regulatory Covid Responses

Throughout 2020 and 2021, several rapid emergency changes were made to legislation across the Commonwealth, States and Territories in response to the Covid-19 pandemic. These and associated public health orders were widely reported in media, raising public awareness and enabling compliance.

Law Reform

The quantity of media attention and collective weight of public opinion generated through reporting can create policy and legislative changes due to public outcry about the role of the justice system in the victim’s experiences. This may enhance prompt resolution of legal issues before they escalate, improving outcomes for individuals and society. An example of this is the introduction of ADVO’s in response to increasing levels of domestic violence rates and related deaths amongst NSW women and children.

Case Study – Crimes Legislation Amendment (Coercive Control) Bill 2022 (NSW)

The media has played an important advocacy role for victims of domestic violence. Released on July 20, 2022, the Crimes Legislation Amendment (Coercive Control) Bill 2022 (NSW) has been widely publicised through the media to encourage public feedback to the proposed legislation. By creating transparency, the media is generating opportunities for the public to participate in the democratic process and ensure that the proposed law is accessible, can be complied with and is meeting society’s needs.

Importantly, the media has also supported the questioning of flaws in the public consultation process, with only a six-week consultation period for key bodies to provide comment and ensure the interests of their clients are met.

Media: the bad

Movitation

The media has a responsibility to report on matters of public concern and interest, including legal matters. However, as profit making entities, media outlets also have a responsibility to their shareholders in creating interest in their content and therefore sales. This creates a conflict between fair and accurate reporting and the need for them to generate readership and profit.

The emergence of the ‘True Crime’ genre of podcasts has created an avenue for investigative journalists to produce more in depth, serialised investigations that provide detailed examination of cases over several episodes. Podcasts can provide a lucrative income stream for media outlets, with the incentive for listeners to continue to listen to discover answers.

Investigative ‘True-Crime’ podcasts tend to focus on cases that create emotional responses to maximise consumer engagement particularly those where there is no resolution. This will increase paid subscriptions and advertising revenue for the outlet. However, such limits on case selection are not reflective of overall outcomes of the justice system and can erode public confidence in the justice system, failing to acknowledge the thousands of cases finalised (investigated and tried) with an outcome on a yearly basis. This creates a perception of widespread problems in the justice system that do not exist on a large scale.

Specific to NSW, in the period from 2017 2020, 126,500 cases were finalised in the court system, with 90.5% of accused found guilty and 4.6% of cases withdrawn by the prosecution. (BOSCAR, 2021)

In addition, podcasts invite listeners to play the role of ‘citizen jurors’, making their own decision based on the evidence presented in the series. The dissection and discussion of details pertaining to the case may serve to erode the presumption of innocence for previous suspects or accused that may be charged in the future. There are concerns that subjects of these podcasts are instead starting with a ‘presumption of guilt’ in the name of profit for media outlets.

Case Study – Podcast: The Teacher’s Pet – The Australian Newspaper (2018-2019)

The 16-episode podcast, “The Teacher’s Pet”, and associated “bonus episode”, produced by the Australian Newspaper and narrated by investigative journalist Hedley Thomas, was available from 18 May 2018 – 5 April 2019. During its availability, the podcast had received 28 million downloads worldwide, with approximately 1 million of those occurring in the jury catchment area of greater Sydney. Identified by Justice Fullerton as a key reason for granting a stay of proceedings until June 1, 2021, the accused was identified as guilty during the podcast, impacting on his presumption of innocence and removing the ability for him to receive a fair trial at the time of charging:

“… there is a real risk that the podcast has influenced prospective Crown witnesses, whether consciously or unconsciously, to reconsider their memories of events long past and to do so through Mr Thomas’ mindset… that the applicant was guilty of murder and that the applicant has told a succession of lies over many years to conceal his guilt.” R v Dawson [2020] NSWSC 1221 at [22]

Impeding Administration of Justice

A tension exists between the courts, who are protecting the rights of vulnerable community members, presumption of innocence and the right to a fair trial, and the media who are engaging in the protection of free speech, transparency, and accountability.

Newsworthiness, language, and perspective

“A stigma is attached to people accused of crimes from the moment news or social media identifies them as a suspect. If… the accused has been identified and charged, the public will expect them to be convicted irrespective of whether the Crown prosecutor has provided evidence of the person’s guilt beyond a reasonable doubt. The public can reject the legal process… shirking the presumption of innocence, through their moral indignation at the crime that has been committed and a demand for someone to be held accountable.” Lauren Chancellor

In criminal matters, the presumption of innocence requires that all accused before the court are innocent until proven guilty beyond reasonable doubt, upholding the principles of fairness and equality. This ensures that all accused persons, regardless of the crime, receive a fair trial based on evidence and facts tested in court by thorough examination and cross-examination to ensure accuracy and relevance.

However, the presumption of innocence can be impacted by the degree and type of pre-trial publicity that a case receives in the media, as well as coverage of the trial during proceedings. As media outlets are profit driven and have coverage limitations because of limited news space, there is a tendency to:

• Select cases based on ‘newsworthiness and ‘ideal victims’, focusing on particular crime types that cause more shock, fear and outrage in order to attract more consumer attention;

• Use of emotional language (brutal, shocking, horrific, loss, criminal, killer) that may create a perception of guilt, create empathy for the victim(s) and give the reader a more personal involvement with the case;

• Report more from the prosecution perspective than the defence, possibly creating a pre-trial ‘presumption of guilt’ and make it difficult to empanel jurors in higher profile cases; and

• Be presented as though an eye-witness account of events and facts, creating a perception of credibility and reliability of information to audiences.

Case Study - R v Singh

Mr Singh, a Sikh man, was accused of murdering his wife, Parwinder Kaur by dousing her with petrol and setting her alight. Even though he was not known to police for any matter and no reports of domestic violence between the two had been made previously by any parties, he was portrayed widely in the media as being an abusive husband, with an emphasis being placed on his cultural background and financial disagreements of the couple. She was portrayed as a gentle, kind and devoted wife, well-liked by neighbours and colleagues.

However, the extensive media coverage and Mr Singh’s portrayal throughout failed to focus on the strong scientific evidence gathered from the scene that indicated Ms Kaur had self poured and ignited the fuel, leading the public to perceive Mr Singh as guilty before his trial had commenced.