Publication with prejudice

By Legal Eagle

A man has been arrested and charged with arson causing death of at least 11 people in connection with the Churchill bushfire. Initially, the identity of the accused was subject to a suppression order, but despite this, vigilante groups on Facebook published the accused’s name, address and photograph. A magistrate has lifted the suppression order, commenting that the identity of the accused was already common knowledge within his community.

Before the suppression order was lifted, Iain Hall was wondering how enforceable it was against Internet publications. Meanwhile, after the suppression order was lifted, Jeremy at An Onymous Lefty was wondering how this helped anything:

Publish the names of convicted criminals, by all means, but accused – why? So that courts have an even harder task finding an untainted jury? So that idiots who don’t understand the principle “innocent until proven guilty” can get started on their revenge early? What is the benefit in that information being out there?

There’s a few different issues here.

First, as Iain noted, in the Internet age it is very difficult to suppress information about an accused effectively, particularly in a case like this where there has been global media coverage. Does a Victorian magistrate have the jurisdiction to charge people with contempt of court if they publish information on an Internet site?

The Joe Gutnick defamation case comes to mind – the defamatory material was published on a server in the US by a US company, but Gutnick was able to sue in Victoria because the damage to his reputation occurred in Victoria.

Using the same principles, it could be argued that contempt has occurred in Victoria because the sites could be viewed within Victoria, regardless of where the server on which material was published was situated. But how would the magistrate enforce it? It could be very difficult – a bit like plugging a million simultaneous holes in a very leaky ship.

I tend to think that in lifting the suppression order, the magistrate was being pragmatic and recognising that the Court’s attempts to prevent the information coming out were not working.

Unfortunately, regardless of whether the accused was named or not, I think it will be difficult for him to get a fair trial. Emotions are running extraordinarily high in relation to the bushfires. It’s entirely understandable to be angry at somebody who is accused of deliberately setting a fire which resulted in multiple deaths. Add to that the juicy tidbit that this guy has also been charged in relation to possession of child p*rn, and he starts to look less sympathetic (if possible).  But I cannot condone the formation of vigilante groups on Facebook.

Our legal system works on the basis that this guy is innocent until unless proven guilty. That’s a fundamental retributive principle: we can’t punish someone unless we know beyond reasonable doubt that he deserves to be punished. We have to have a trial presenting all the relevant evidence before we judge him. We can’t just say, “He was a kooky scrap metal guy who was always lighting fires in the backyard, so he must have done it.”

By assuming this guy’s guilt without knowing all the evidence, the vigilante groups may have exactly the opposite effect from what they want. They may cause his trial to be derailed, as the defence barristers will be able to argue that he has been unfairly prejudiced before the trial even began. Do they really want to make it very difficult to prosecute this guy? Seems to me that they need to calm down and think logically and carefully about it. The same goes for the media: they need to be responsible in the way they report information about the accused.

Update:

I do think that vigilante group perpetrators should be charged with contempt of court if possible. Their behaviour is highly irresponsible, and an example needs to be made.

[UPDATE by SL: I thought I recognised the name of one of the two admins for the main vigilante facebook group. I googled for a graphic and got a match — it’s one Darrin Hodges, best known for his role in this fine organisation. For those unfamiliar with Australian politics, the Australian Protectionist Party is best described as ‘ultra-nationalist’. Here’s a background archive for Mr Hodges at anti-racist site ‘Fightdemback’; he’s tangled up with Southern Cross Soldiers somehow too (another group that should be familiar to readers both here and at LP).]

[UPDATE II by SL: Hodges has now been removed as admin, as this discussion (and the group’s main page) indicates]:

removed-from-admin

25 Comments

  1. jc
    Posted February 17, 2009 at 6:33 pm | Permalink

    I haven’t figured out why the identity is so crucial in this guy getting a fair trial.

    Speculation about him and why he did it won’t end. People would continue reading about him.

    Jurors who read about him in the papers would most likely recall the information if not his name.

    This is just being silly.

  2. jc
    Posted February 17, 2009 at 6:35 pm | Permalink

    In fact I view this as the opposite. In an open society we should have a right to know the names of accused people.

    It’s as though the state knows best and we cannot be relied on to hand out a fair verdict. IF that’s the case we ought to scrap the jury system entirely and then we just pretend that judges won’t be biased.

  3. Posted February 17, 2009 at 6:47 pm | Permalink

    It looks like Facebook have canned all the vigilante groups, which is just as well. When I dug up that info about Darrin Hodges last night, I felt like I needed a bath afterwards. Some of it was really bloody medieval.

  4. Posey
    Posted February 17, 2009 at 7:06 pm | Permalink

    True, LE. Or like “The Scarlet Letter”.

  5. Posted February 17, 2009 at 7:07 pm | Permalink

    Yep, they’re back again. I actually don’t think making Facebook delete them is particularly useful. Far better to use them in order to gather information. Mind you, they are violations of Facebook’s terms and conditions, so even without police intervention, Facebook is quite within its rights to hit ‘delete’.

    Amazing how many people think it’s okay to make messes on other people’s property. Even if it’s virtual property, it’s still property.

  6. Petierla
    Posted February 17, 2009 at 8:23 pm | Permalink

    Just to throw a spanner in the works, by releasing the accused’s name does this not help end speculation and gossip. Also lessen the possibility of vigilante action against other, totally unrelated others?

  7. Petierla
    Posted February 17, 2009 at 8:24 pm | Permalink

    Normally I use correct grammer….unlike the previous post

  8. jc
    Posted February 17, 2009 at 9:11 pm | Permalink

    LE

    * Potential prejudice to the accused during his trial

    I can’t see how this can change with or without publication. The jurors would be just as biased knowing or knowing the accused name.

    * Harassment of the family and associates of the accused once the details are widely known

    Surely that would also happen after the case.

    Extra security measures for the accused and his property once his identity is confirmed

    Possible. But again it could also happen after he was convicted.

  9. Posted February 17, 2009 at 9:26 pm | Permalink

    Those problems are largely a function of irresponsible media reporting, jc, not the simple release of a name, and regardless of when they happen, they remain wrong (and potentially) criminal. Unlike Jeremy (aways up the thread), I’ve not viewed freedom of the press as a per se good for a very long time, and one of the things I wish to contribute to legal debate in due course is a serious problematization of the role of the press, rather than just the usual lawyerly grumbling. The comments Paul, Anonymous Lefty, LE and I make whining about aborted trials (I’ve seen a few), mistrials and other media-generated cock-ups should be more widely known and understood. We’re not making this up, or engaging in special pleading.

    Now the justice system has one weapon with which to deal with an irresponsible press — contempt of court. Don’t get me wrong, contempt of court can be useful, but just like a man with a hammer starts seeing every problem as a nail, contempt of court is a very blunt instrument. Sometimes it’s even a counter-productive instrument. I outlined my proposed reforms over at Online Opinion ages ago. They amount to this: treat media organisations in exactly the same way as we treat all other corporations — no special privileges. At the moment they enjoy exemption from the operation of s52 in their role as news and information providers.

  10. Jeremy
    Posted February 18, 2009 at 9:15 am | Permalink

    Sure SL, no special privileges. I’m all for treating the media exactly the same as everyone else. But why does it follow that you and I can talk about the alleged arsonist to our hear’s’ content but not Four Corners (or ACA or whatever?) You seem to be advocating special burdens for the media.

    If so, you’re not alone. The view that the media should be treated ‘like a corporation’ is followed under Victoria’s rights charter, which only grants rights to ‘human beings’. That is why Channel Nine couldn’t get its foot in the door in arguing that the ban on Underbelly was a breach of its freedom of expression. No humans involved in that bit of expression at all, apparently.

    And contempt laws have always treated the media differently from others. It’s the media who are the subject of suppression orders and journos are the ones who are ‘summonsed’ routinely before the courts to be ‘dressed down by a judge. You ask, who guards the guardians? The answer is that judges watch the media. But are you watching the judges? You seem to take for granted that those ‘mistrials’ you refer to are the fault of the media and not some judge who’s let power go to his or her head.

  11. Posted February 18, 2009 at 4:01 pm | Permalink

    JC – You’re answering your own question:

    I haven’t figured out why the identity is so crucial in this guy getting a fair trial.

    It’s crucial because:

    Speculation about him and why he did it won’t end. People would continue reading about him.

    And they’d believe the goss instead of the evidence perchance. Tony Mokbel anybody? But peremptory challenges will probably filter that out (worked with Luke Shaw – not). Thing is there was a report on the Facebook outers, they say they’ve done nothing wrong!!

    What exactly does the education system impart to people? You woulda thought post-Lindy Chamberlain that we might’ve thought people thinking ‘I don’t like her haircut’ being legitimate grounds for a murder conviction was, um, a problem somewhat.

  12. Posted February 18, 2009 at 4:03 pm | Permalink

    Jeremy – I’m all for treating the media exactly the same as everyone else. But why does it follow that you and I can talk about the alleged arsonist to our heart’s’ content but not Four Corners (or ACA or whatever?

    Now – we are the media.

    Posey – So you’re a Christmas Bush on the outside but a flame tree on the inside?

    Wow! I think I’m in love. 🙂

  13. Posey
    Posted February 18, 2009 at 5:10 pm | Permalink

    Adrien, how can we not love ourselves, each other and all of nature when “the mind within us is not merely the mind of a foolishly-sophisticated city-dweller, fussing about amid shops, offices, studios, theatres, concert-halls. It is the mind of a starfish, a bird, a polar-bear, a viper, a sea anemone, a sycamore-tree, a half-born planetary god!”

    “For we are not pans and barrows, nor even porters of the fire and torch-bearers, but children of the fire, made of it ….a compendium of nature, an indomitable savage.

    “Take the smoothest curlied courtier in London or Paris. He lives, makes and alters, by omnipotent modes, and is directly related there, amid essences and billets doux, to Himmaleh mountain chains, wild cedar swamps, and the interior fire, the molten core of the globe.”

    Ralph Waldo Emerson

  14. Posted February 18, 2009 at 6:05 pm | Permalink

    And even Emerson. 🙂

    How can I not love all of nature? One word: seagulls. 🙂

  15. Posted February 18, 2009 at 7:20 pm | Permalink

    I think we’re destined to simply agree to disagree on this. As I said, contempt of court is a useful (but limited) control on an irresponsible press, and I’ll trust judges before journalists any day (unlike many around the place, I’ve worked at both the Bar/courts and for sundry newspapers. It was blindingly obvious which of the two institutions gave a crap about accuracy and fairness). I have never seen a judge-generated mistrial, and that observation now covers practice in two common law jurisdictions.

    Yes, I’m an advocate of strong judicial power, and don’t believe (pace Jeremy Waldron) that all power needs to be elected in order to be legitimate. Sure, I accept that judicial review can overspill into judicial legislation (Roe v Wade is the signal example), but judicial legislation is a different issue from that of dealing with the media. I’m not asking the media to stop speaking (we meet the concept of nuance, natch), but I am asking for responsible media speech. I happen to think that s 52 is a far greater guarantee of media responsibility than contempt of court or defamation, both of which tend to be after the fact and (in the case of the latter), only available to the wealthy.

    You will note, too, that no-one here is bandying the name about, and everyone is speaking responsibly. I’m happy as a blogger to be disciplined by the exigencies of section 52 (after all, we do make money from this blog).

    Now on the creepy animals front, I note there seem to be no North Queensland childhoods in evidence. Having one of these in your backyard tends to remind you that nature, she can be a bitch.

  16. Jeremy
    Posted February 19, 2009 at 8:22 am | Permalink

    For some research on aborted trials, see: http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB66.pdf/$file/CJB66.pdf

    My own views on these matters were firmed by events in 1997, referred to in that research. Following comments launching ‘Operation Paradox’ by NSW Police Minister Whelan that ‘on average a single child molester would have assaulted up to thirty-seven kids before being caught”, several NSW district court judges aborted ongoing trials. One offender, freed on bail following that trial, killed two children three weeks later. Obviously, the bail decision was a mistake. But I’m not alone in thinking that Whelan’s comments were responsible and that the decisions to abort the trials were not.

  17. Posey
    Posted February 19, 2009 at 3:24 pm | Permalink

    That is a pretty yucky photo, SL. I’m snake and spider phobic. Luckily the static image shows the bird immobile and expressionless, perhaps already dead or drugged.

    What is interesting in nature though is that wounded animals, hurt insects, whether cats hit by cars, or partially disembowelled but still breathing rats, moths with lost wings, wingless baby birds fallen from their nests, fish with bleeding gills, beetles overrun by ants, caged birds, snared rabbits or cattle knowing they’re about to be slaughtered, all manage, somehow, with an enduring stoicism and dignity, to draw obstinate satisfaction from the mere fact of being alive. It is as if they (and we) can tap into a level of bliss that is some way out of reach of the distress, pain and fear simultaneously experienced.

  18. Posted February 19, 2009 at 6:16 pm | Permalink

    I’d like to see a post sometime on the debate viz the Media are/are not corporations like any other.

  19. Posted February 23, 2009 at 12:36 pm | Permalink

    When I first saw this topic rear its ugly little head over a week ago, I wondered if you’d post on this!

    So glad you did… so much thought-provoking material here.

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  1. By Better than a lynching « Balneus on February 18, 2009 at 5:01 pm

    […] "Publication with prejudice" (2009-02-16) by LegalEagle at SkeptiCLAWer […]

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