Chesterman, Michael --- "Criminal Trial Juries and Media Reporting" [2004] ALRCRefJl 23; (2004) 85 Australian Law Reform Commission Reform Journal 23

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Reform Issue 85 Summer 2004/05

This article appeared on pages 23–26 of the original journal.

Criminal trial juries and media reporting

By Michael Chesterman*

Two cases decided by the New South Wales Court of Criminal Appeal within the past 12 months have highlighted in particularly dramatic ways the difficulties involved in trying to ensure, as far as possible, that criminal trial juries are not subjected to influence from media publicity.

In R v K,¹ some members of a jury, in the course of the trial, discovered through an Internet search that the accused, who was on trial for the murder of his first wife, had previously been tried and acquitted for the murder of his second wife. This discovery was revealed to defence counsel during a conversation in a hotel following the jury’s delivery of a verdict of guilty. This piece of information about the accused had not been given to the jury in the courtroom. The trial judge had directed the jury to ignore all publicity about the case and to reach its verdict on the basis of the evidence alone, but had not specifically instructed it to refrain from making Internet searches. It was not clear whether the results of the Internet search had been disclosed to all the jurors in the jury room, or only to some of them.

The Court of Criminal Appeal allowed an appeal by the accused on the ground that the ‘irregularity’ arising from the Internet search may have affected the verdict. The information that the jury had received was, it said, ‘potentially prejudicial, in so far as it risked inviting an application of tendency and/or coincidence reasoning, or risked raising bad character in circumstances in which that kind of evidence would have been inadmissible’.²

The Court of Criminal Appeal ordered that the case be tried again. This has since occurred without a jury being empanelled.³ A Supreme Court judge conducted the trial and found the accused guilty.⁴

In R v Tayyab Skeikh,⁵ the appellant was one of five co-accused in a very highly publicised rape case. He was tried separately from, but ‘back-to-back’ with, the other four accused men, with the same judge presiding at both trials. His trial commenced while the jury was deliberating in the trial of the other four accused. Its decision that they were guilty prompted a spate of hostile media publicity, which was ‘graphic’ and ‘condemnatory’, included a detailed description of the facts and made references to the common ethnic background of all five accused. The trial judge in this first trial had refused to order that the verdict should be taken in camera, that is, in a closed court. Sitting as the presiding judge in the second trial, he also refused an application for discharge of the jury on account of the prejudicial nature of this publicity and the likelihood that the jury would realise that the two trials were factually linked. The second trial resulted in a verdict of guilty. The accused appealed against this verdict.

The Court of Criminal Appeal unanimously rejected his argument in the appeal that the verdict in the first trial should have been taken in camera. It agreed with the trial judge that he could not have prevented reporting of the verdict. But President Mason and Justice Wood held, with Justice Sully dissenting, that in view of the publicity that it had attracted there was ‘a risk of substantial miscarriage of justice’ in the second trial.⁶ This arose particularly because the media coverage was such as to generate ‘feelings of anger, revulsion and general hostility’ to young men of the relevant ethnic background and because it would have confirmed for the jury in the second trial that the two trials had a common factual background.

The two majority judges held that the trial judge should have granted the appellant’s application for discharge of the jury and that since he had not done so the trial was unfair. Reluctantly, they held that the conviction must be quashed and a new trial ordered.

Justice Sully considered, however, that since the appellant had not denied being present during the sexual assaults committed by the other four men, the media’s explanation of the links between the two trials had not compromised his allegation that, although present, he had not participated in such assaults. He had, therefore, not lost a chance of being acquitted that was fairly open to him. The jury had decided that his evidence was not to be believed and instead accepted the contrary evidence of the complainant.

All three judges pointed out also that the problem was created because the trials had been listed for hearing ‘back-to-back’ and the second one had begun before the first was concluded. They should have been separated by a significant period, to enable the effect of the publicity for the first verdict to die down.

The Court of Criminal Appeal’s majority decision itself provoked a significant bout of further media publicity, much of which was highly critical of the outcome. It was claimed that the Court had failed to take proper account of the capacity of juries to withstand prejudicial publicity or of the trauma that the complainant would now have to suffer through being required, after the ordeal of two trials, to testify a third time at the retrial.

Fairness versus open justice

These cases illustrate an apparently unavoidable conflict between two fundamental principles governing the Australian criminal justice system.⁷

One of these principles is that trials must be fair. In order that this aim be achieved, juries must not come into contact with material which the law regards as inadmissible in the courtroom because it is likely to exert a prejudicial influence upon them. In crude terms, material is ‘prejudicial’ in this context if the degree of influence that it can be expected to exert on a jury is greater than what lawyers call its ‘probative value’—that is, its weight as evidence in proving matters in issue at the trial. A classic instance of prejudicial material is an allegation that the accused has in the past committed offences of the kind with which he or she is currently being tried. In assessing what is ‘prejudicial’, the law places great weight on the presumption of innocence and the associated requirement that the case against an accused must be proved beyond reasonable doubt.

A branch of the law of contempt of court, known as sub judice contempt, is designed to ensure that jurors are not influenced by the publication of prejudicial material. It makes media publishers liable to heavy penalties if, subject to limited exceptions, they publish prejudicial material in circumstances where there is a genuine risk of influence on a jury in a current or forthcoming criminal trial.

The other fundamental principle is that justice must be ‘open’. This means that, subject again to limited exceptions, trials should be held in open court, with free access to any member of the public, and anybody, including media publishers, should be free to disseminate fair and accurate reports of court proceedings to the community.

The principle of open justice comes into direct conflict with the requirement of fair trial when statements made in a trial proceeding in open court are prejudicial in the context of another proceeding. This may either be occurring at the same time (as in Tayyab Skeikh) or commence at a later stage (as in R v K).

Generally speaking, the law has resolved this conflict in favour of open justice. A media publisher facing prosecution for sub judice contempt will not be liable if the publication was a fair and accurate report of a trial held in open court. In some circumstances, though, the judge presiding at that trial may make an order—a so-called ‘suppression’ or ‘non-publication’ order—to the effect that a specified part of the proceedings should not be reported. If this is done, a publisher breaching the order may be criminally liable for so doing. But the powers of judges to make these orders have distinct limitations, and there is a natural reluctance to make them too easily obtainable. To do so would threaten to undermine seriously the fundamental principle that justice should be ‘open’.

These two recent cases exemplify in different ways the long-standing conflict between the two principles. Tayyab Skeikh presented a classic instance, such as might have occurred at any time since the rise of the popular press. Reports of the first trial by the traditional mass media were inevitably of interest to the jury in the second trial. They contained prejudicial material. Except to the extent that they went beyond fair and accurate reporting, the publishers of these reports could not be held liable for sub judice contempt. On account of limits in the power of the judge at the first trial to make suppression orders, it was not legally open to him—and might in any event have proved ineffective in practice—to prohibit reporting of the verdicts. Only a substantial lapse of time between the two trials might have resolved the problem. And even that, for reasons that will now be explained, might have proved ineffective.

By contrast, R v K illustrates the old problem with a modern twist. It is likely that media reports of the trial and acquittal of the accused for the murder of his second wife provided the initial source for the Internet site from which the jurors made their discovery. What the Internet did was, first, to record and retain this information within its vast store of material and, secondly, to make the information available, through the powerful search engines that now exist, to anyone investigating K. (It is significant that K’s surname, Keir, is not as common as Smith or Jones.) These capacities of the Internet create a distinct possibility that even if, in the circumstances arising in Tayyab Skeikh, the second trial had been held some months after, instead of back-to-back with, the first trial, the jury in the second trial could still have discovered the prejudicial material that was of such concern to the Court of Criminal Appeal.

This is not to say that a delay before commencing the second trial would have been of no use. It would have given time for the climate of hostility created by the publicity towards young men of the relevant ethnic background to dispel, to some extent at least. But the possibility that some or all of the jurors would have discovered the prejudicial material on the Internet would have remained. Moreover, in the ordinary course of events, the trial judge would not have known whether in fact they had made this discovery.

Empirical studies

Because in most parts of Australia the law contains a prohibition on questions being put to members or former members of a jury about its deliberations, the extent to which prejudicial material in mass media publications or on the Internet actually influences jury verdicts has not been greatly researched. But in some states, including New South Wales, the Attorney General may authorise such questions for research purposes.

With this authorisation, a research project carried out by the University of New South Wales and the Justice Research Centre explored the likely impact of media publicity in 41 jury trials of criminal cases held between 1997 and 2000 in NSW. The centrepiece of the research was a series of telephone interviews with people who had been members of the juries. The judges and barristers involved in the trials were also interviewed. Most of the cases studied had attracted a significant quantity of media publicity before and/or during the trial itself.

The research team concluded in its report⁸ that, seen overall, jury verdicts were less influenced by media publicity than is often feared. In part, this appeared to be because jurors recalled less of the publicity put out before the trial—when, significantly, they were not involved in the case at all—than is often supposed. On the other hand, they tended to be well aware of publicity about the case—particularly newspaper reports—once it began. But in so far as it chiefly took the form of summaries of the trial proceedings themselves, they frequently depicted themselves as unaffected by it because they found it remarkably inaccurate. One juror said bluntly: ‘If you didn’t know any better, you would have thought that the reporter was watching another murder trial, not ours’.⁹

The most encouraging findings of the report were these.¹⁰ First, in a significant proportion (30%) of the 40 trials in which a verdict was actually delivered, this verdict was contrary to the tenor of the media publicity relating to the case, but was said to be at least ‘acceptable’ or ‘safe’, if not clearly correct, by the judge and by counsel on both sides—that is, by ‘losing’ counsel as well as by the barrister whose arguments prevailed. Second, in only two trials (5%) did it seem that an ‘unsafe’ verdict (in one instance, an acquittal) had been reached by virtue of influence from publicity.

On the other hand, there was a group of four more trials (10%) in which a verdict that losing counsel considered ‘unsafe’ might have been attributable to influence from media publicity. In a significant group (18, representing 45%), the verdict was both ‘safe’ and in line with the publicity relating to the case, making it particularly difficult to decide whether it was determined at least substantially by the evidence or to a significant degree by the publicity.

The report contains some findings relating to the specific issues arising in R v K. In five of the trials,¹¹ material suggesting that the accused had previously been convicted of or charged with an offence similar to that now being tried came to the knowledge of some or all of the jury, without the judge or counsel realising this. Not surprisingly, it appears, from what the researchers were told, to have exerted an influence on the views of at least some of the jurors. It was not found in any of them, however, to have led to a clearly ‘unsafe’ verdict.

In one of these five trials, the material in question, having been conveyed to one juror by a friend or acquaintance and then relayed to the other jurors, was apparently not believed by any of them. In another, it was obtained from the Internet, but due to the efforts of one juror, it was not passed on to another juror until that juror, who was undecided, had reached a conclusion as to the appropriate verdict. Both these cases were within the group of 18 in which the verdict was considered ‘safe’ but was also in line with the tenor of the publicity.

The difficulty that trial judges have in preventing the media reporting aspects of prior or concurrent trials that might influence a current trial—as recently illustrated in Tayyab Skeikh—was also encountered in the research.¹² Feeling unsure of the scope and effectiveness of their powers to make suppression orders, the judges in four of the trials studied made requests to the media not to report certain matters. Although, as far as the judges were aware, these requests were complied with, the juries found out the relevant information anyway, in three of the four cases. Their verdicts did not, however, appear to have been determined or influenced by it.

New measures for dealing with these problems are being discussed. They include directing jurors not to consult the Internet;¹³ making it an offence for them to do so (it is already an offence in Queensland);¹⁴ requiring the prosecution to conduct an Internet search before the trial begins and then directing any relevant sites to remove offending material for the period of the trial;¹⁵ and enhancing both the power to make suppression orders and their effectiveness.¹⁶

A fundamental question underlies all these proposals. It is whether it is in fact necessary nowadays to try to prevent jurors obtaining access to prejudicial material about an accused such as might be contained in ‘fair and accurate’—that is, not ‘graphic’ or ‘condemnatory’—media or Internet reports of prior proceedings. A second project recently established at the University of New South Wales aims to explore, again partly through interviews with former jurors, the extent to which juries, in discussing the evidence given in the courtroom, can cast off any influence exerted on them by knowledge of past convictions of the accused, or other similarly prejudicial information bearing on his or her character. If, contrary to prevailing orthodoxy, the dangers of their encountering such material can in fact be significantly reduced by their own efforts, supported by appropriate judicial directions, the conflict between fair trial and open justice will be considered a good deal less stark than presently appears to be the case.

* Emeritus Professor Michael Chesterman, a former Dean of Law at UNSW, was a Commissioner of the ALRC between 1983 and 1992. He was responsible for the ALRC's Report Contempt (ALRC 35, 1987). More recently, he was Commissioner-in-charge of the New South Wales Law Reform Commission's Report Contempt by Publication (Report 100, 2003). He is an Acting Judge of the District Court of NSW and a Deputy President of the Administrative Decisions Tribunal of NSW.

Endnotes

1. [2003] NSWCCA 406, 23 December 2003.

2. Ibid, [54].

3. In NSW, this is permitted under s 132 of the Criminal Procedure Act 1986, so long as both the prosecutor and the accused consent. Within Australia, a system of this nature was introduced first in South Australia and exists also in Western Australia and the Australian Capital Territory.

4. R v Keir [2004] NSWSC 964, 22 October 2004.

5. [2004] NSWCCA 38, 4 March 2004.

6. Ibid, [40].

7. For a recent discussion by Chief Justice Spigelman in the NSW Court of Criminal Appeal, see John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCCA 324, 15 September 2004, [17]-[23].

8. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (2001) Justice Research Centre, Law and Justice Foundation of New South Wales.

9. Ibid, [240].

10. Ibid, [328] and Table 4.4.

11. Ibid, [253]-[254], [334]-[344].

12. Ibid, [354]-[356].

13. See, eg, R v K [2003] NSWCCA 406, 23 December 2003, [90].

14. Jury Act 1995 (Qld), s 69A.

15. John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCCA 324, 15 September 2004, [65].

16. New South Wales Law Reform Commission, Contempt by Publication, Report No 100, (2003), Ch10, 16.