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]:
74 Comments
It makes it hard, when you have to oppose the poorly thought out civics of those motivated by justifiable anger.
Especially when they start laying into you!
I hope you don’t get flamed for this. Was worth quote of the week (and it’s Monday).
Nice new digs BTW.
~ Bruce
Unfortunately this sort of silliness was only a matter of time, especially after Rudd’s ‘mass murder’ comment. I don’t blame Rudd for saying that — if you look at the interview he was utterly lost for words and on the verge of tears — but the reaction was nonetheless probably inevitable. The trial will probably have to take place in Brisbane or something in order for it to be fair.
The internet can potentially make things a lot worse than they already are.
The British press, famous for its sense of responsibility (not), went to town when Tim Simenon was charged with rape for some reason. He was widely plastered with the label but the evidence was so flimsy the jury took three minutes to acquit.
Now this chap may be guilty and he may not be. But if he is then it’s going to be a lot harder for the prosecutor to supply the required fair trial. And if he’s innocent he could get punished for something he didn’t do even if the jury acquits.
But those of us that remember Lindy Chamberlain realize that the concepts of courts, justice, presumption of innocent and rules of evidence are things that’ve yet to penetrate the thick and meaty skulls of the Oz polloi.
Putting Jeremy and Iain in the same para LE? Naughty.
Vigilantes forget two aphorisms:
(1) Vengeance is a dish best served cold.
(2) Refusal to emulate is the best revenge.
If the arsonist is NOT psychotic, but a mere sociopath, as I’ve said elsewhere, I’d confiscate all assets and give them to victims in part payment, and be tempted to install a debilitating fear of fire so that he can’t stand a photo of someone lighting a cigarette.
If the arsonist IS psychotic, then there is cause to reflect on the poor funding of mental health services, something voters have seemed to be happy with. If any component of such a psychosis involves religious delusions…
Either way, I bet most of those vigilantes, apart from stupidly jeopardizing a just trial and sentence, would hypocritically condemn police planting evidence. Most would probably object if I smashed in their windscreen if I saw them using a mobile when driving, or when passing a stopped tram, even though lives are risked by such actions.
It is all a bit of a storm in a teacup I reckon, though I appreciate lawyers’ and revenge nuts’ understandable pre-occupations about fair trials, etc.
But achieving a guilty verdict for an accused arsonist is likely to do exactly what and achieve precisely what in reducing the incidence of arson in the medium to long term?
If the arsonist is NOT psychotic, but a mere sociopath
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Interesting. A sociopath is someone who is incapable of feeling empathy. As in their brain is incapable of processing empathy of ‘feeling with’. This condition does not have a cure and is said to be heritable. I wonder how long it is before someone uses it as a defense.
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But achieving a guilty verdict for an accused arsonist is likely to do exactly what and achieve precisely what in reducing the incidence of arson in the medium to long term?
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Um, do you really want that question answered?
Excellent post, Legal Eagle.
A very valid point; “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?”
In addition, the “causing death” component is going to be hard enough for a prosecution to progress as it is – cause and effect are not always as legally obvious as we non-lawyers sometimes believe.
Adrien@6: The difference between psychosis and sociopathy is that sociopaths /are/ in contact with reality and can use cognitive adjustments.
Psychotics do not have the opportunity for cognitive adjustments unless they uncommonly also possess insight into their delusions. (Nash as portrayed in “A Brilliant Mind” being a well-known example of cognitive controls to manage psychosis)
The other difference is that the biggest sociopaths are highly paid, and highly regarded by everyone but the poor bastards who need to get the sociopath’s signature on their timesheets.
Besides, empathy is not necessary here – it’s simply a matter of looking to the most elegant solution if everyone else behaves as YOU do.
I’ve more on sociopaths and brain structures/fMRI here. The possibility of defence is there… but there are consequences… barring from positions of responsibility, a cattleprod to the relevant areas of the brain, drugs… probably easily to cop a guilty plea.
Lizzie, I think we actually have to learn a different lesson from this whole thing – to look out for people with firelighting tendencies and to prevent them from lighting fires in the first place. In my initial bushfire post, I linked to a report by the Australian Institute of Criminology which had some interesting insights in what might drive people to do these sorts of things, and how we might intervene to prevent it.
LE, you say that, “Our legal system works on the basis that this guy is innocent until proven guilty.” I’ve always understood it as “Our legal system works on the basis that this guy is innocent unless proven guilty.” This may sound like no difference at all, but “until” reads to me as a presumption that it’s only a matter of time, whereas “unless” suggests the possibility that “this guy” (or any other random defendant) may not be found guilty.
HI LE, could you expand on the question posed by Jeremy:
“What is the benefit in that information being out there?”
My guess would be that past victims and potential witnesses could possibly come forward. I’ve heard this mentioned in paedophile cases where the publicity alerted other victims who then came forward to press charges.
Is this enough to justify the trial by media these cases inevitably create?
Alister – good point – I didn’t mean to infer that it was only a matter of time until this guy would be held guilty. “Unless” would be a better word.
Darren, that is a very interesting point. I have heard the same argument in relation to sex offences – that victims are too afraid to bring a complaint until they see the perpetrator’s name in the press, and suddenly a whole flood of victims contact the police. So there are upsides to publication of the name of an accused, but there are also downsides.
I’m not saying that you should never publish the name of an accused. I’m just saying that in a situation such as the present, the press should be very careful in the way that they portray the accused. And that people should not take the law into their own hands: it is irresponsible. Furthermore, it is unfair to judge someone before the evidence has been heard.
Alister, post updated to strike out “until” and replace with “unless”.
This is one of the justifications for things like ‘Megan’s Law’ and other related forms of legislation designed to expose the identity of certain kinds of offenders and accuseds.
One persistent finding in criminological research is that the majority of crimes are committed by the same (relatively small) number of people in a given population. In the UK, that figure is around 100,000 (remembering that the UK has a much greater population than Oz). Publicising the name of the accused — especially when the police know the person has a large number of ‘priors’ for a given type of offence — has the effect of flushing out many more witnesses, and allows those witnesses to support each other at trial.
The latter may seem strange, but one of the reasons why certain offenses (rape and arson are the two biggies) are difficult to prosecute is that if offenses are treated in isolation, it’s easier for the accused or his mates to intimidate witnesses (this happens very frequently). Obviously the law of diminishing returns comes into play the more witnesses there are, and conviction rates improve, especially for rape.
Set against this is the problem of trial by media, which various people have already flagged. Criminologists who advocate things like ‘Megan’s Law’ or exposing the accused’s identity then have to deal with the fact that the media is extraordinarily irresponsible — as some of the bushfire reporting we’ve seen indicates. The only thing that is beginning to discipline the press and its almost unique talent for generating mistrials is the fact that the whole institution is gimcrack and dying, but that said waiting for the market to solve the larger problem won’t solve the mistrial problem with respect to this alleged arsonist — or any others — that emerge out of the bushfires.
If we could enact laws that expose the accused’s identity and thus locate more (and better quality) witnesses in a media-free vacuum, then I’d be cautiously in favour. The fact is, though, we can’t, so have to stick with the system we have.
Legal Eagle, I apprecite your concern about vigilantes, but I wonder whether you’re giving juries enough credit.
As I understand it, their track record for getting it right is pretty good, even when there’s been highly inflammatory media coverage.
Or are you more concerned about what might happen to the accused outside the court?
Thanks, LE – I had wondered about the until vs unless issue.
LE looks like she’s busy just now, Robert, so I’ll answer from my criminal lawyer’s perspective:
1. Juries are pretty good, but they can be ‘turned’ by the press — the Lindy Chamberlain case is the classic example. Although juries have tended to acquit in terrorism cases, no terrorism has taken place on Australian soil, and the cases have often been quite weak. Where the damage has happened in the locality, and its after-effects are impossible to ignore (that probably takes in the whole state of Victoria), then the possibilities for mistrials mount.
2. Vigilantes trying to burn the guy’s house down are a serious concern.
3. Media coverage can produce other things that, while they don’t amount to prejudicing a jury, can still produce mistrials. Examples (which I’ve seen in practice) include turning up and filming the crime scene during a case, or so piquing jurors’ interest that individuals go and investigate the crime scene themselves.
Of course, it is possible to see the crime scene once empanelled on a jury. This is called a ‘jury view’, and can only done by leave of the court, on application by counsel. The entire jury, the judge, court officials, accused and barristers all go on the view together, and strict protocols about who may interact with whom are observed.
Essentially, suppression orders etc are simply devices to ensure the person presumed innocent will receive a fair trial. Underlying this view is the presumption that a juror may develop prejudices which could subsequently affect his/her assessment of evidence advanced during court proceedings.
This view would seem intuitively reasonable – but is there any serious research supporting the view that :-
(a) jurors judgment is actually affected by potentally prejudicial media reports etc?
(b) jurors are incapable of setting aside such material when assuming the resposibilities of their role in court proceedings?
Given that the “fair trial” requirement is fundamental to our legal system I would hope that serious research does support this “intuitively reasonable ” view.
Ennui: (very brief, as I have to go and teach now): yes there is plenty of research, but it’s all US research, as the jury-room is nowhere near as sacrosanct there as it is in Australia or the UK.
Jurors are prevented from discussing (under the terms of their oath/affirmation) matters raised in the jury-room, and what influenced their verdict, and even the form their deliberations took. Many, many, many criminologists desperately want the research that’s been done in the US to be replicated in the British Commonwealth, but so far their pleas have been to no avail.
Thanks, SL.
Robert and ennui, I’m sure that I’ve read a paper which says that juries generally do a pretty good job despite prejudicial reporting in the media. Funnily enough, jury dynamics and psychology is a very under-researched area – a lot of it is “intuitively reasonable” stuff.
With a quick Google search, I found this interesting paper (apparently someone’s uni essay?!?). The conclusion seems to be that it hasn’t been conclusively proven one way or the other whether jurors are adversely affected by press reports, and that the evidence is equivocal.
I would suggest that with most normal criminal cases, people wouldn’t even remember the initial reports, but with a high profile case like this, there is a lot higher possibility that people will remember the initial press reports and form some kind of a view which sticks with them. I don’t know to what extent people are able to put that view aside; I know that I’d try to put any prejudices aside if I were on a jury.
@ Dave and Adrien – are we conflating sociopaths and psychopaths together, or not, or what? I feel like I’ve joined the conversation late (probably because I have.)
@ LE – Ahhh bum, you got the mangled trackback with the typo. Sorry :O
One thing that has occurred to me about Facebook vigilantes is just how ephemeral such groups are. They may be a big deal now but by the time the matters that inspired them actually come to trial they are nothing of consequence and/or have faded from people’s minds. Their very existence is more about venting and expressing feelings than achieving any a particular goal or outcome. So perhaps we should be thankful that trials of people accused of very serious/heinous crimes come to fruition sometime after the events when cool heads are easier to find.
It will also greatly increase the cost of the trial. Not only will the guy need to be held in protective custody from now until he’s found innocent, his property will need to be guarded. It would be very hard to argue that he should be liable for the costs of either of those actions, which means a Police guard (which I hope is already in place).
I am also curious about the child porn allegation – we could be talking about a picture of his daughter in the bath at this point, and the p*lice have form on this one. It sounds very much like a generic smear to me.
Iain, I’d agree that it is good that crimes are prosecuted some time after initial passions have faded. Obviously you don’t want too long a time to elapse, as this is not fair on either the accused or the victims – you have to strike a happy medium.
Moz, the police would have to be guarding this guy’s property. I understand that the police have been keen to keep this guy’s ID under wraps because of the threat to his safety and his property, which uses up their resources when they could be better employed elsewhere. They wouldn’t want the trial to be derailed by vigilantes either, I suppose. Dunno about the child p*rn – we’ll just have to wait and see what the evidence is with that one.
LE or SL – what is the capacity for the trial to be moved to another state?
In Queensland (and in the UK, I might add), the usual practice is to vet the jury very thoroughly, while this case shows how contempt of court operates in Victoria. I can’t find any examples of a Victorian trial being removed interstate, and indeed while in practice only saw one trial removed to a different area — in this case to Brisbane from North Queensland — due to prejudice. In the latter case, the jury was drawn from the local pool, but the court staff were all from the ‘home’ jurisdiction. It is possible, but relatively rare. Mind you, everything about this situation is extraordinary.
The best research around on prejudicial publicity affecting trials in Australia is Michael Chesterman’s study. He found (a) that jurors nearly always ignore judges’ instructions not to research a case or read the papers; and (b) that the main thing they learn is that most of the public commentary about criminal cases is highly inaccurate. Those jurors aren’t all that different to us ‘smart’ folks, hey? Funny that…
To my mind, the main cost of suppression orders is that thy stop people talking about a crime contemporaneously with its occurance and investigation. That’s a high cost, because crimes and their investigation are important topics to talk about and such conversation is not well served by waiting until the justice system groans its slow way to its conclusion (if it ever gets there, with appeals and retrials and whatnot.)
Shouldn’t everyone (from the PM down) be talking about whether or not someone who lights a fire that burns some people to death is a murderer? Or about how to manage people with a history of arson or other dodgy behaviour? And why shouldn’t the state’s work in detecting, investigating and prosecuting arsonists be up for close scrutiny? Be careful of lawyers telling everyone that their little project (criminal justice) trumps all other concerns.
By the way, speaking of criminal law, I don’t think that causation (or actus reus more broadly) is a serious issue in this case. The test for causation in homicide is extremely broad and you can count on one hand the cases in the last century where it hasn’t been established. Rather, (aside from the defence of insanity), the big issue is mens rea: whether the defendant was aware that it was PROBABLE that his actions would kill or seriously injure someone. That’s a tough question and it’s worth thinking (and talking) about whether this part of the law of murder is appropriate…
This assumes that the only people doing the talking are the ladies and gentlemen of the press, and has something in common with the widespread conflation of ‘freedom of speech’ and ‘freedom of the press’. Also, too, many of those conversations can — and have been — taking place long before the accused was named. We’ve been having — albeit in rather fractious terms — the ‘does arson=murder?’ ding-dong even before Kevin Rudd’s intervention.
If this is a ‘cost’ to suppression orders, then it needs to be weighed against the danger that the proceedings could finish up being stayed on grounds of prejudice (more likely than removal interstate, to be fair).
I very much doubt that the matter can be moved interstate and, anyway, it wouldn’t help, as the jurors will have to be Victorians. The Juries Act requires that all jurors be enrolled as electors of the (Victorian) legislative assembly and legislative council. Of course, the trial won’t be happening in Churchill!
And all this talk of the trial not being held ignores all Australian courts’ willingness to hold a trial come what may, subject only to delay and (internal jurisdictional) venue change and juror vetting. The classic example is Dennis Ferguson, who will be tried this year for indecent acts despite his name and history being known to every Qeenslander, thanks to deliberate vigilantism by parts of the Queensland press. The contrary order of Bottling DCJ was overturned by the Queensland Court of Appeal last year, with the judges declaring that our ‘system’ does not permit any conclusion that there’s no such thing as an irreparably biased jury electorate. The High Court turned down Ferguson’s special leave application just least week. (Interesting timing, I’m sure.) A recent Victorian example is Thomas Towle. Given those precedents, there’s not the slightest risk that a trial will be permanently stayed in the arson case or its being moved interstate. Given Michael Chesterman’s research, there’s a lot of sense in this.
Sure, there’s a distinction between a free press and free expression, but what’s that add here (especially in light of today’s headlines calling for bans of discussion on blogs?) It’s events and public discussions of them that get people talking and, for that matter, acting. The Victorian parliament will almost certainly pass new laws beefing up the penalties for arson and changing some of the definitions, in response to the bushfires. But, thanks to fears of contempt actions, the context of those legal changes will get little or no discussion in Victoria.
Well well well, the stuff you find. 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 (another group that should be familiar to readers both here and at LP).
Not much more to say, really.
Jeremy
You suggest that the best (Oz) research re prejudicial publicity is that of Michael Chesterman.
Could you supply a reference for that research?
BTW I don’t seem able to access the link that LE
posted at (21)
Bruce @ 22 on conflation of “sociopath” and “psychopath”.
Sociopath and psychopathy are often used as synonyms, and such use is not inaccurate.
I prefer “sociopath” generally, because I feel it is less perjorative, highlights those affected by the behaviour, and implies that there is more of an element of choice by the perp.
The Chesterman (et al) report (including a useful summary) is available here: http://www.lawfoundation.net.au/report/prejudicialpublicity
Jeremy, that Chesterman piece is very interesting; thanks for the link. I think I read about it some years ago, but couldn’t remember the author or details (just shows that recall is indeed imperfect).
Hmm ennui, I don’t know what happened to my link there. I’ll have to try and fix it.
SL, curiouser and curiouser. The plot thickens.
It will be interesting to see how this trial pans out, from many angles.
Peter Cameron Burgess was sentenced in 2002 in Penrith (NSW) Magistrates Court to two years’ jail after being charged with 25 arson offences. He pleaded guilty to lighting 16 fires in the Blue Mountains (where he was a volunteer with the Rural Fire Service) and in the NSW Central Coast and Albury-Wodonga regions. He was a babe, 20s. He showed no sign of mental illness or so the record stated.
He said he was bored and fighting fires gave him a sense of achievement. Just before his arrest he was lighting fires on almost a daily basis and reporting them on his mobile phone. Then NSW Attorney-General Bob Debus was aggro about the light sentence, and it was claimed he would’ve got a much longer sentence if it’d gone to a district court.
Some interesting references:
Based on the work of a number of researchers, including that of her own, Talina Drabsch (NSW 2003) identified seven groups of people with arsonist tendencies. See her paper linked below.
I think it must be emphasised, though, that as well as these predominantly psychological profiles of (typically male) histrionic, alienated, low self-esteemed, attention seeking, vandalistic, psychopathic or sociopathic personality types (to the extent you can reduce any human being to a taxonomic psychological profile, which I am loath to do), there still exists the “pyromania” of people who strongly believe the bush needs to be “cleaned up” and burnt regularly. Typically, such characters despise “greenies” and environmentalists, resent ecological policies and national parks, and have little to no feeling for animals or the bush. They are often attracted by volunteer firefighting too. They probably do not consciously intend to cause harm to human life or property, just to destroy what they view as pest species of flora and fauna and partake of the kudos awarded volunteer firefighters.
http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/CA9A4BBDED3D32B3CA256ECF00071B74
Rebekah Doley’s work is also very interesting. A fire researcher and arson psychologist she has interviewed many convicted arsonists and works mainly in the US and UK with government and the law.
Some info about her and her work here:
http://abc.com.au/nature/bushfire/hot/doley.htm
http://www.abc.net.au/rn/scienceshow/stories/2006/1769679.htm
Dave – Sociopath and psychopathy are often used as synonyms, and such use is not inaccurate.
I’m aware of the difference between ‘psychosis’ and sociopathology. And yes a sociopath is able to distinguish reality from fiction and, theoretically, right from wrong. That is, a sociopath can understand that stealing is considered wrong.
However the term psychopath and sociopath do denote similar conditions. In modern psychological patois: dissocial personality disorder. Sociopaths don’t necessarily break the law or gain enjoyment from causing, say, physical pain. The term antisocial personality disorder tends to describe the more extreme ‘psychopath’. And ‘psychopath’ is often used to denote a crazed killer or some such.
But the condition appears to be due to something called ‘hippocampal abnormalities’ which may be partially heritable and cannot be cured.
The other difference is that the biggest sociopaths are highly paid, and highly regarded by everyone but the poor bastards who need to get the sociopath’s signature on their timesheets.
Not all sociopaths are successful. They are way over-represented in maximum security correctional facilities for example. There successful ones. The following was the basic criteria to determine if your boss was one run on TV a few years back:
Sounds like a job description for an Account Exec at Saatchi and Saatchi to me.
SL. or LE – a comment of mine is stuck in moderation. Perhaps too many links?
Sorry Posey – just back from eating my tea – I’ve released it now.
The spam eater eats comments with more than 2 links, although frequently it eats comments with any links. It’s a little over-eager.
Given that police regularly put giulty parties before the courts only to see defendants given a slap over the wrist and released I think it is perfectly reasonable to undermine a jury trial and have mass murders, lets face it, that is what fire lighters are, released back on to the streets well away from do-gooding, bleeding hearts and certainly well away from “protective custody”. What are the chances of this, or any other, similarly accused ever having the gumption to honestly face their accusers?
Sorry, just re-read comment. Personally I do not think it reasonable to undermine jury trials, however I do understand the point of view of those who do.
Thanks, LE.
I hope you partook a choice repast.
Over-eager is good
Posey – Typically, such characters despise “greenies” and environmentalists, resent ecological policies and national parks, and have little to no feeling for animals or the bush.
No you are lying.
It’s the Greens’ fault. It is their fault. Oh don’t come that commie crap about how they don’t have anyone on the councils that stop people cutting down trees. It’s the Greens fault.
It is because it is because it is!
Okay!!
I wouldn’t know about greens, adrien. I am a watermelon, juicy, red and with black pips that people like to spit from their mouth.
Ah, Posey, you wouldn’t have had any problem with the question posed to me in a law firm interview.
I am a watermelon
.
When I was at uni there was an election ticket that ran as the watermelons. Red on the inside, green on the outside. They didn’t mention the black pips (You anarchist!!!).
Nothing personal but a wit at the time cracked that they proved that red + green = brown.
Had to repeat it.
And of course there’s a Green and Black thang for eco-anarchists.
http://en.wikipedia.org/wiki/File:Anarchist_flags_and_stars.svg
Notice that the anarcho-capitalists have a yellow flag. Is there a conference or maybe an athletics meet?
Incidentally, I suspect this particular accused isn’t a green hater – purportedly, he had a quote on his MySpace page saying “‘My hero is mother earth – with out her we all would be dead.’” And he had a job as a gardener at a university (caring for green things). At least, so the Daily Telegraph in the UK tells me.
However, I’d infer from the press reports that his profile fits with most of the other factors Posey mentioned above. Presumably this is one of the things which led to police focusing on him.
LE, that is a scream!
Adrien, re the red + green = brown wit. My sincere condolences to him.
To me, red + green is:
Corymbia (Eucalyptus) ficifolia – red flowering gum;
Ceratopetalum gummiferum – Christmas bush;
Brachychiton acerifolius – Flame tree;
and the beloved, if non-native, Delonix regia – Poinciana
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.
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.
jc, not so much his identity as the other information.
I guess an argument for not releasing his identity is that now his mother and brother are being harassed, not to mention his ex-girlfriend (whom people have been able to track down via social networking sites). And valuable police resources are being diverted to guarding his property. On the other hand, I think it would have happened anyway even if his name hadn’t been released because the knowledge was being disseminated anyway.
My real beef is not the identity of the guy, but the activities of the groups on Facebook (in contempt of court). These people have made violent threats to him and his family. Regardless of what this guy is alleged to have done, that is totally out of line.
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.
A whole lot of new groups have sprung up re the accused. They make me feel ill too.
It is a bit like The Crucible.
True, LE. Or like “The Scarlet Letter”.
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.
Or more literary allusions – the groups are like a hydra – when you cut off the heads, more spring up.
When I did a search this afternoon (to try to recapture the Hodges image), there was a totally different set of groups. I’m guessing those ones I saw in the afternoon have been canned in the meantime, and these new ones have sprung up. And so it goes on.
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?
Normally I use correct grammer….unlike the previous post
Petierla, yes, if there was any doubt about who the likely suspect was, the upside of releasing the name of the accused would be that any speculation about other people would be quashed.
As I said above, I’m not arguing that one should never release the name of an accused. There are clearly pros and cons on either side. Just to pick a few:
Pros:
* People might come forward with more information about the accused once his name becomes known
* Promoting freedom of the press and freedom of access to information which is of interest to the general public
* Preventing gossip or vigilante action against people who are totally unrelated to the accused
Cons:
* Potential prejudice to the accused during his trial
* Harassment of the family and associates of the accused once the details are widely known
* Extra security measures for the accused and his property once his identity is confirmed
What I cannot condone are the vigilantes who disobey the order of the court.
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.
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.
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.
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.
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.
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
And even Emerson.
How can I not love all of nature? One word: seagulls.
For me, Adrien, it’s European wasps. I can’t hurt a fly, or any other animal…but I can hurt a wasp any day.
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.
Ewww to that spider.
Although we once had a small pretty golden orb weaver outside our house. Her web was large and amazingly strong – I looked it up, and apparently it’s the strongest spider silk of all. I really admired the engineering of that web. I could deal with a spider the size of a 20 cent coin outside my window – but a bird-sized one eating a bird…that’s just too creepy.
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.
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.
I’d like to see a post sometime on the debate viz the Media are/are not corporations like any other.
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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