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The very real impact and influence of media reporting and social
media commentary upon high profile criminal trials in the past
couple of years has led Victorian criminal defence lawyers to apply
to have evidence withheld from the public ahead of a possible
Supreme Court murder trial.
The trial
The lawyers for
Greg Lynn, the man accused of killing elderly campers Russell
Hill and Carol Clay have won a bid order to keep some evidence
secret pre-trial, including more than 5,000 covert police
recordings from Lynn’s home and car prior to his arrest.
Mr Lynn, who has denied killing the couple, is currently facing
a committal hearing before a magistrate to determine whether there
is enough evidence for his case to proceed to trial.
Despite a number of arguments from various media outlets,
desperate to cover what has been an intriguing murder case so far,
Magistrate Brett Sonnet granted the suppression order, which
prevents the publication of certain evidence that is sought to be
relied on by the prosecution in the case.
Mr Lynn is not required to enter a plea until the end of the
committal hearing, although it is expected that he will plead not
guilty.
A redacted version of the police brief has been provided to the
media, and other information will be tightly distributed on the
same basis now that the suppression order is in place.
What is a court
suppression order?
A
suppression order is a court order which prohibits the
disclosure of information about a legal case. They can be put in
place for a number of reasons, but are usually to guarantee the
safety of witnesses or to guarantee a fair trial.
As we have seen in recent times,
media reporting can adversely impact criminal trials. While
most journalists, particularly those reporting on court cases,
understand protocols around reporting, sometimes mistakes are
made.
But of more concern for the judicial process is
social media commentary which can spread like wildfire.
Not only is it increasingly difficult to know which social media
pages publish trustworthy credible information, it’s
particularly pervasive, which makes finding a truly independent
jury difficult.
High profile
trials and the media frenzy
This was an argument put forward by the defence lawyers
representing
Chris Dawson, accused of murdering his wife Lyn in 1982, and he
was granted a judge-alone trial. He was subsequently found guilty
and is now serving a 24-year prison term.
A judge-alone trial was not possible for Bruce Lehrmann when he
faced sexual assault charges because under the ACT’s law,
sexual assault cases must be tried by a jury. In the case of
Brittany Higgins versus Bruce Lehrmann, both were heavily
scrutinised by the press in the lead up to the trial and it was
actually delayed at one point after comments were made by
Lisa Wilkinson, and radio hosts Brendan Jones and Amanda
Keller. The trial was aborted after a jury member brought
information found on the web to jury deliberations, despite being
told not to do so.
Other accusations in terms of the way police handled the case,
have meant that the entire judicial process – from police
investigations through to the trial itself, is now under
investigation.
Fined for
contravening court suppression order
In 2016, Yahoo7 was fined $30,000 and journalist Krystal Johnson
was convicted of the
criminal offence of contempt of court after publishing details
about a defendant that had not been heard in the courtroom, leading
to a Melbourne murder trial being aborted. Ms Johnson was given a
two-year good behaviour bond.
During the trial of now deceased Catholic Priest George Pell a
reporting ban was put in place at the start of Cardinal Pell’s
2018 trial to prevent the possibility of prejudice affecting a
separate trial he was to face on other charges.
Under the suppression order, journalists were banned from
reporting any detail of the sexual abuse case, including the
outcome.
Pell was acquitted of all charges against him in 2020. He
returned to the Vatican shortly after and died earlier this month.
Several news organizations in Australia ignored the suppression
order and they were fined for ‘contempt of court’. Amongst
them, The Age newspaper was fined $450,000 and News Corp was fined
more than $400,000. The Australian Financial Review was fined
$162,000 and the Today show was fined $30,000.
The right to a
fair trial
Although these fines are substantial, deliberately, in order to
make media companies more accountable, and to ensure proper
oversight about what information is published, many argue that it
is a relatively small price to pay, particularly when it has the
potential to impact a criminal trial, where the fate of the
innocent and the guilty are determined.
The right to a fair trial is a cornerstone of our justice system
– and it must be protected.
The offence of
contravening a suppression or non-publication order in New South
Wales
Section 16(1)
of the Court Suppression and Non-Publication Orders Act 2010
(NSW) prescribes a maximum penalty of 12 months in prison
and/or a fine of 1000 penalty units for a person, or 5000 penalty
units for a corporation, who ‘ engages in conduct that
constitutes a contravention of a suppression order or
non-publication order and is reckless as to whether the conduct
constitutes a contravention of a suppression order or
non-publication order.’
A
penalty unit is currently equivalent to $110 in New South
Wales, which means the maximum fine is $110,000 for a person or
$550,000 for a company.
To establish the offence, the prosecution must prove beyond
reasonable doubt that:
- A suppression or non-publication order was in place,
- You engaged in conduct that contravened the order, and
- You were at least reckless as to whether your conduct amounted
to a contravention.
You were reckless if you realised at the time of your conduct
that you may possibly contravene the order but you went ahead with
your actions regardless.
Legal defences
to the charge
In the event you are able to raise evidence of a legal defence
to the charge, the onus then shifts to the prosecution to disprove
that defence beyond a reasonable doubt.
You are entitled to an ‘acquittal’ (ie a not guilty
verdict) if the prosecution is unable to do so.
Legal defences to the charge include duress, necessity and
self-defence.
May
alternatively be charged as a contempt of court
Subsection 16(2) of the Court Suppression and Non-Publication
Orders Act makes clear that, ‘[c]onduct that constitutes an
offence under this section may be punished as a contempt of court
even though it could be punished as an offence.’
What is
contempt of court?
A contempt of court is an act that has the tendency to interfere
with or undermine the authority, performance, or dignity of the
court or those who participate in court proceedings.
It is an offence under section 24 of the Local Court Act 2007
and section 199 of the District Court Act 1973, as well as Part 55
of the Supreme Court Rules 1970.
The offence carries a maximum penalty of 28 days in prison
and/or a fine of 20 penalty units, which amounts to $2,200 at the
time of writing.
What does the
prosecution have to prove?
For a person to be found guilty of contempt of, the prosecution
must establish each of the following ‘elements’ (or
ingredients) of the offence beyond a reasonable doubt:
- The defendant engaged in conduct that had the tendency to
interfere with or undermine the authority, performance or dignity
of the court or those who participate in court proceedings,
and - The defendant intended to do the act.
The prosecution will fail if it cannot prove each of these
elements to the required standard.
It is important to note, however, that the prosecution is not
required to prove that the defendant intended to actually interfere
with the administration of justice – just that he or she
intended to do an act which, viewed by a reasonable person, had the
tendency to do so.
This is known as an ‘objective test’ and means the
defendant’s reasons behind doing the act are not determinative
of the offence.
What may amount
to a contempt of court?
The following conduct has been found to meet the legal test for
contempt:
- Failing to comply with an order of the court, such as a
suppression order or a non-publication order, - Protracted swearing and yelling at a magistrate,
- Filming witnesses in an attempt to intimidate them,
- Evading questions in court or refusing to answer them,
- Refusing to take an oath or affirmation in court,
- Refusing to leave the courtroom after being directed to do so,
and - Disobeying court orders such as subpoenas to attend court or to
produce evidence.
A ‘last
resort’
The courts have made clear that a contempt charge should be used
as a ‘last resort’ to deal with unruly persons within the
courtroom, and all other possible options should be considered
before resorting to a formal charge.
These options include:
- Giving a warning,
- Directing a person to leave the courtroom,
- Providing an opportunity to seek legal advice, such as advice
relating to the privilege against self-incrimination when being
asked questions on the witness stand, - Considering whether the matter should be referred to the
Attorney General for consideration of charging the person with
engaging in disrespectful behaviour in court.
The courts have further found that rudeness or extreme
discourtesy by lawyers does not amount to contempt.
In addition to this, the courts have made clear that, like
police officers, magistrates and judges should be able to resist
the sting of insults directed at them, as they are trained to be
level-headed and to keep calm under stressful situations.
They should not, therefore, resort to a charge of contempt until
and unless it is completely necessary.
What are the
defences to contempt of court charges?
The defences to contempt of court are the same as for those to
section16 of the Court Suppression and Non-Publication Orders Act,
and include duress, necessity and self-defence.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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