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Panpa Bulletin : April 2007
PANPA Bulletin March 2007 33 media matters The standard media excuse for break- ing court and crime reporting restric- tions has not changed in at least two decades ... "But I wasn't the only one, Your Honour!" A long line of cases adding up to millions of dollars in fines is proof that this doesn't wash with judges and magistrates. Sydney broadcaster Alan Jones tried it last month when he claimed he named a juvenile witness because he had already seen the child's name in the Daily Telegraph. His nemesis John Laws used it when he was given a suspended jail sentence in 2000 for soliciting information from a juror. He had it wrong, though. The Sydney newspa- per had not really published the juror story. Several Tasmanian outlets were threat- ened with contempt action in 1996 imme- diately after the Port Arthur massacre when the accused gunman Martin Bryant lay in hospital after shooting 35 people dead. Luckily for the journalists, there was an argument Bryant had not formally been "ar- rested" at that point, and there might have been a public interest defence given the gravity and scale of the crime. Nevertheless, it was the pressure of com- petition in the atmosphere of a crime story of historical proportions that prompted editors to take the risk. A variation on the theme is when police media have fed the contemptuous informa- tion ... "But the coppers told me I could publish it." They escaped with a bruising but no fines or jail terms when they covered the arrest of former detective Harry Blackburn in Sydney in 1989 for a series of rapes over two decades. It was a clear case of trial by media, with Blackburn's image plastered across front pages and on commercial television screens with a clear assumption of guilt. A royal commission exonerated Blackburn and lay most of the blame at the feet of the police commissioner and his media office for setting up a pre-arrest press conference and "walk" of the accused past waiting cameras. But the media did not get off so lightly with their contemptuous coverage of ac- cused axe murderer Paul Mason's arrest in the same year. Six NSW outlets were fined a total of $670,000 for swallowing the police line on the case, including coverage of Mason being paraded around the crime scene and publication of his confession as supplied by the police. Mason killed himself in jail, but the newspapers and television networks still went for contempt. As I travel the countryside training journalists in media law I am in awe of the ignorance about restrictions on crime and court coverage. Older journalists still perpetuate the myth that the sub judice period does not start until after an accused has been charged. Wrong. The restrictions kick in from at least the time of arrest, with the Australian High Court ruling in 1963 that a matter can be sub judice even from the time a warrant for arrest has been issued. And, of course, the risk of defamation is there until you are protected by the occa- sion of a court appearance. The fact that the moment of arrest rather than charging is the time you must restrict your coverage was spelt out clearly by Justice Lee when he presided over the Blackburn Royal Commission way back in 1990. From that point on you are restricted in a whole range of ways so your coverage has no chance of affecting jurors or witnesses. There can be no hint of guilt or even in- nocence of the accused, no mention of previ- ous charges or convictions, no linking with other crimes, no publication of contestable evidence, no images of the accused where identification might be at issue in the trial, and of course no confessions or interviews with witnesses about their recollections. Despite this being quite clear, it is not always part of police training, so they some- times supply highly contemptuous infor- mation to make themselves look good. The courts will not accept this as an ex- cuse in a media contempt trial, however. Only today I received an email from a NSW regional journalist who attended one of my training courses, attaching a press statement from the State Crime Command about an arrest in a high profile crime. The police gave the age and suburb of the man arrested, which is fair enough, but the heading and the body of the statement linked the individual to other crimes for which he had not been charged. The statement proved the NSW Police did not seem to have learned anything from the Blackburn and Mason episodes all those years ago, and that journalists need to be on the alert for police feeding them contemp- tuous information. Another concerning area of ignorance is in editors' misunderstanding of the identification restrictions during the sub judice period or when juveniles or sexual assault victims have been photographed in police custody. If there is any chance identification might be an issue in a forthcoming trial, the accused must not show any identifying features in any published images. The courts are concerned about whether an image might show any identifying char- acteristics and thus pollute the recollection of witnesses. This is also the case for juvenile ac- cused, juvenile witnesses and sexual assault victims, although for all of these the courts are also concerned for their privacy, so you cannot feature any characteristics recognis- able even to those who know them well. Despite this, we see newspapers pushing the margins on identification by placing tiny black slits across the eyes of suspects, as if the eyes are the only identifiable feature. They might as well draw a pair of sunglasses on them * Professor Mark Pearson is director of the Centre for New Media Research and Education at Bond University, Australia. Email: mpearson@sta .bond.edu.au Contemptuous mistakes Many Australian editors and journalists remain ignorant about restrictions on crime and court coverage, writes Mark Pearson.