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Ardill, Allan --- "The right to a fair trial: prejudicial pre-trial media publicity" [2000] AltLawJl 2; (2000) 25(1) Alternative Law Journal 3

The right to a fair trial: prejudicial pre-trial media publicity

Prejudicial pre-trial media publicity.

Allan Ardill[*]

Many people would be familiar with the cliché, that, ‘it is better to let ten guilty people go free than to gaol one innocent person’. This should be more than a mere cliché in the minds of criminal justice system practitioners, because a system that does otherwise risks a lot more than just public confidence in legal processes. History shows that it can also risk the entire political system.

The High Court decision in R v Glennon [1992] HCA 16; (1992) 173 CLR 592 stands in the way of an accused’s right to get a fair trial after inadmissible and prejudicial material has been published prior to the trial. In drawing attention to this case, this article considers the competing institutions of fair trial and of free speech, the recommendations of law reform agencies, and the law in four other jurisdictions. (Page references in brackets throughout this article are to Glennon unless otherwise stated.)

Fair trial and adverse publicity

One aspect of a fair trial is that no person should be deprived of freedom at the hands of the state without first having the opportunity to test the allegations and supporting evidence in a court of law, and then only after being found guilty beyond reasonable doubt. It is an important virtue of a democratic society.

Another virtue of democratic society is the notion of free speech. However it is false to think of free speech as a right when it is in fact a freedom. It is a freedom that can never literally occur because its exercise is subject to others’ rights. For instance, it is limited by the laws of defamation and contempt, and by any number of statutes.

Nonetheless free political speech is the lifeblood of democracy and, like the right to a fair trial, courts are quick to defend it. Conflict between free speech and the right to a fair trial can arise in the reporting of crime, particularly when the report concerns proceedings before and during a trial.

A jury must determine the case before it based on admissible evidence before the court, and not on prejudicial information from outside. Before evidence can be considered in a court it must be admissible. Courts and Parliaments throughout the common law countries have developed elaborate rules and procedures designed to prevent juries considering information that is more prejudicial than probative, to facilitate rationality, objectivity, and the right to a fair trial.

Another measure in relation to information before a jury is the law of contempt. Contempt allows the courts to punish conduct which, ‘impairs, or threatens to impair the proper administration of justice by the courts’.

[1] But to speak of contempt as preventative would be misleading; it is more properly a deterrent, and does not always prevent jury prejudice.[2]

The courts recognise the limited effectiveness of contempt as a measure, and so use a variety of remedial measures. In Australia the remedial measures vary between jurisdictions, but they include discharging the jury, warning the jury not to use the prejudicial information, granting an adjournment, changing venue, and setting aside a conviction.[3]

Not all pre-trial publicity necessarily prejudices a jury. It is unfortunate that there is an absence of any science on the extent to which adverse publicity can survive contempt laws and courts’ remedial measures, and contaminate the jury.[4]

When, despite any remedial measures, contempt laws have afforded no protection to the fairness of an accused’s trial, one cannot be certain one way or the other whether an innocent person may have been gaoled. In Glennon, that was precisely the scenario.

Australia

After the decision in Glennon, an accused’s right to a fair trial in Australia must compete with the community expectation that an accused charged with a serious criminal offence will be brought to trial.

Glennon was a Roman Catholic priest who, in 1978, was convicted of indecently assaulting a girl under 16. In 1985, he appeared as a Crown witness in an assault case against his nephew and another person who had allegedly assaulted him. Counsel for the youths cross-examined Glennon about his 1978 conviction, and accused him of indecently assaulting the two youths. Extensive media coverage was given to those allegations.

Glennon was subsequently charged with a number of sexual offences and appeared before the Magistrates Court on 12 November 1985. In three separate broadcasts Derryn Hinch, on a popular Melbourne radio station, alleged serious criminal conduct and sexual impropriety on Glennon’s part. Hinch specifically reported the prior conviction.

Hinch unsuccessfully appealed his conviction for contempt all the way to the High Court (Hinch v A-G for Victoria [1987] HCA 56; (1987) 164 CLR 15). Three judges of the High Court said:

Clearly the three broadcasts on a popular Melbourne station, in a context where specific reference was made to the pending criminal proceedings against Glennon in a Melbourne court, constituted one of the most severe cases of contempt of court involving the public pre-judgement of the guilt of a person awaiting trial to have come before the courts of this country. [at 620]

Extensive media coverage persisted throughout the Hinch cases, and his brief period in gaol. Despite this Glennon was twice denied a stay of proceedings based on the prejudicial publicity, and was convicted. His successful appeal to the Victorian Court of Criminal Appeal was itself appealed by the Crown to the High Court. The Crown appeal succeeded by a majority in the High Court.[5]

The minority in Glennon commended the earlier judgment, noting that the proceedings involving Glennon had lasted six years including four years of a concerted, and cumulative media campaign against him:

The critical finding of fact made by a majority of the Court of Criminal Appeal was that the cumulative effect of the pre-trial publicity made the case ‘an extreme and exceptional or singular one in which neither the lapse of time nor directions of the trial judge obviated an unacceptable — in the sense of significant or substantial — risk that the trial was unfair by reason of illegitimate prejudice and prejudgement on the part of the jury’. [at 623]

The minority identified the competing interests in the case as ‘the balancing of the legitimate interests of the accused, and the prosecution’. By contrast, the majority saw the case as a contest between some community expectation that an accused charged with a serious criminal offence will be brought to trial, and the accused’s right to a fair trial (Mason CJ and Toohey J at 598, and Brennan J at 617).

The Glennon case is an authority for the proposition that the mere possibility that a jury has been made aware of an accused’s prior criminal conviction for similar offences is not enough to conclude the accused was denied a fair trial.[6] Further, it does not follow that, where there has been a conviction for contempt for the real risk of prejudicing a fair trial, the actual trial was unfair.[7]

A critique

In Glennon the High Court drew a legalistic distinction between its earlier finding that Hinch was responsible for a real or substantial risk of prejudicing Glennon’s trial, and its finding that Glennon was able to get a fair trial despite the extent of the contemptuous pre-trial publicity; on the one hand Hinch was guilty of a real and substantial risk of prejudicing Glennon’s right to a fair trial, but on the other Glennon was still able to get a trial sufficiently free of prejudice.

As Duncan Kennedy said:

Since it is not possible to move in a deductive fashion from concept to implications, we need some other way to account for the process of judicial law-making. That explanation will be found in the judge’s moral, political and economic views and in the idiosyncrasies of his understanding of the character of the fact situation. Where the judge’s views do not sit comfortably with society, he can respond to this with legalistic mumbo jumbo, that is, by appealing to the concepts and pretending that they have decided the case for him. Or he can take the risks inherent in acknowledging the full extent of his discretion.[8]

The ‘stories’ told by the majority and the minority in Glennon varied considerably, supporting the very different conclusions reached. The minority was prepared to take the risk inherent in exercising their discretion based on their version of the ‘story’ and on the standard of ‘fairness’: they were attempting to protect the individual’s liberty from an unfair trial. By comparison, the majority rigidly adhered to formal rules to mask what was in effect a policy decision. For Mason CJ and Toohey J it was the fear of public outrage, together with a concern that if a warning to the jury was inadequate in this type of case, then what good is a warning when a jury is exposed to otherwise inadmissible evidence as to propensity introduced to counter a defendant’s evidence as to good character?

Both the policy and the rules used by the majority in reaching their verdict, deserve further critical analysis. The majority decision used four main techniques to avoid the hard decision. First, the majority claimed:

If a punishable contempt occurs, ex hypothesi there is a real risk of prejudice — perhaps, to adopt the formulation by Mason CJ, a substantial risk of serious interference with a fair trial. But it does not follow that, where a punishable contempt of court has been committed, the trial must be aborted.[9]

Clearly the test for a permanent stay of proceedings, or to abort a trial, is much stricter than the test for sub judice contempt. The contentiousness of this type of reasoning is that it masks the fact that there was nonetheless ‘a substantial risk of serious interference with the fairness of the trial’.[10] The test for a permanent stay of proceedings requires that ‘there must be a fundamental defect which goes to the root of the trial of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.[11]

Use of the rules in this way, while legally sound, denied the extraordinary facts, and paved the way for a reassuring appeal to tradition:

Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial’. [at 615]

A second theme in the majority decision concerns the belief that an appropriate warning from the judge will be enough to ensure a fair trial. This is one of the great legal fictions. There is an abundance of research that raises serious doubt about the assumption that a jury can separate evidence from other material. Further, the same research challenges the assumption that a trial judge can somehow minimise the impact of prejudicial publicity.[12]

It is dangerous to assume that the trial judge in Glennon was able to overcome the apparent fundamental defect going to the root of that trial. In other jurisdictions key cases agree that there is a distinct lack of data to determine accurately when and whether adverse publicity taints the jury.[13] Cases refer to the qualified ability of juries to follow the trial judges’ directions and to exclude inadmissible prejudicial material.[14]

Third, the majority argued that the accused’s right to a fair trial had to be balanced with the community expectation that an accused facing serious criminal charges would be brought to trial.

The primary issue at stake in a criminal trial is, surely, whether in a fair trial the accused was guilty beyond reasonable doubt. On appeal, the focus must be on the fairness of the trial and not whether the accused’s right to a fair trial should be denied in the interests of free speech or on some artificial presumption of public opinion. It is not a question of mutual exclusivity, because in the reverse free speech would not need to be denied, rather, merely temporarily curtailed.

Finally, the majority relied on the ‘floodgates fear’: it would be ‘adventitious if trials could be halted by a punishable contempt’.[15] This argument is illogical, because each case would need to be determined on its relative merits, and while there may be an initial run of cases, it would not last. This point is supported by experience in England. There, in two highly publicised cases, the courts have been prepared to uphold the right to a fair trial as more important than the community expectation that an accused will be brought to trial.[16] The English courts have not been plagued with similar actions.

Law reform agencies

Both the NSW Law Reform Commission (NSWLRC) and the Australian Law Reform Commission (ALRC) have published material relevant to this discussion.[17] Interestingly, the NSWLRC recommends against the United States approach of using voir dire examinations of potential jurors to test for preconceived views of the case, while admitting that without this tool, ‘there is no really effective way of knowing whether potential jurors have been influenced by pre-trial publicity (p.100).

Other suggested reforms were for the election of a trial by judge sitting alone, and for stricter rules to limit the publication of pre-trial publicity. The former proposal is now law in NSW but the prosecution has a right of veto.[18] The latter suggestion affords no safeguard where the rules are ignored.

The ALRC recommended against the American voir dire juror interrogation. It preferred that where contemptuous publicity does occur, the judge should exercise a discretion to question jurors to identify the extent of any adverse impact. The ALRC recommended that contempt should provide a ground in the subsequent trial for a change of venue, or postponement of the trial, and that judges should have the power to order conditional verdicts such as a retrial where appropriate (Report No 35, pp.18-19).

United States

The United States (US) has a very different approach to the problem of prejudicial media publicity. Unlike Canada, New Zealand and the United Kingdom, the US tackles the problem by focusing in on the jury itself rather than on the media which tends to have almost total freedom. In addition the accused in the US has a right to a public trial.[19] Instead of using media restrictions, the US approach attempts to liberate the jury from bias by encouraging its impartiality. In practice,

…the approach taken in the US seems to be to allow for the widest possible latitude in media reporting of events transpiring prior to and during the course of the trial of an accused person. This is counterbalanced, in the interests of ensuring an impartial and unbiased jury, in a number of ways including, during the jury selection process, by an often searching examination into the attitudes, biases and even the personal and financial affairs of potential jurors and, after the jury selection process has been completed, by the sequestration of the members of the jury while the trial is in progress to reduce the risk of their exposure to the media and other publicity generated by it.[20]

In the US, if prejudicial pre-trial publicity resembled that which was experienced in Glennon, one would have expected that other precautions would have been taken to ensure a fair trial. For example a US court would have gone to greater lengths to ensure the jury was not affected by the coverage before proceeding. By contrast the only protection afforded in Glennon was by way of a judicial warning to the jury.

In Stroble v California [1952] USSC 62; 343 US 181 (1951), the leading US decision on point, the accused had been convicted of the ‘sex murder’ of a six-year-old girl. While in police custody he had allegedly confessed to the crime and the District Attorney released to the press details of the confession and also announced his belief that the defendant was guilty and sane. Substantial coverage was given to the release. The defendant waived his right to a non-jury trial. The US Supreme Court rejected the appeal which was based, among other grounds, on prejudicial pre-trial publicity. With one judge dissenting, the Court ruled that the accused had failed to prove that the pretrial publicity had necessarily prevented a fair trial. The appeal also failed on this ground because the accused had not moved for a change of venue at the trial, and the confession was ruled admissible.

Stroble can be distinguished from Glennon where the accused consistently denied any guilt, and had no right to a change of venue. Even so, the points made by Frankfurter J in dissent are pertinent:

Such passion as the newspapers stirred in this case can be explained (apart from mere commercial exploitation of revolting crime) only as want of confidence in the orderly course of justice. To allow such use of the press by the prosecution as the California court here left undisciplined, implies either that the ascertainment of guilt cannot be left to the established processes of law or impatience with those calmer aspects of the judicial process which may not satisfy the natural, primitive, popular revulsion against horrible crime but do vindicate the sober second thoughts of a community. If guilt here is clear, the dignity of the law would be best enhanced by establishing that guilt wholly through the processes of law unaided by the infusion of extraneous passion. The moral health of the community is strengthened by according even the most miserable and pathetic criminal those rights which the Constitution has designed for us all. [Stroble at 201-2]

The same is true in the absence of a constitutional guarantee, as in Australia, where the accused is dependent solely on the common law for the protection of liberty.

Canada

Rather than seek a stay of proceedings the accused, in Canada’s leading case on point (Re Dagenais et al and Canadian Broadcasting Corp. et al (1994) 94 CCC (3d) 289) sought a publication ban of the pending prejudicial publicity. In Dagenais the accused, along with three others, was a member of a Catholic religious order and was facing criminal charges alleging the physical and sexual abuse of several pupils. The accused successfully obtained a comprehensive publication ban to stop the Canadian Broadcasting Corporation from televising a planned ‘docudrama’, which was a fictional account of systematic sexual and physical abuse of pupils at a Catholic residential institution.

The broadcaster and other media services appealed to the Canadian Supreme Court, and won. The Canadian Supreme Court ruled that under their Charter of Rights and Freedoms, the accused’s right to a fair trial was not superior to freedom of speech, and that the publication ban was too broad, going beyond what was adequate.[21]

Under the Canadian Charter of Rights and Freedoms, s.2(b) gives freedom of expression, and s.11(d) gives the accused a right to a fair trial in similar terms to the ICCPR, Articles 14-16. Prior to the Charter the common law right to a fair trial was seen as superior to freedom of speech; under the Charter, the two rights were to be treated as equal according to a new test (Dagenais at 317).

The new test meant that a publication ban could only be ordered where (a) such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk, and (b) the salutary effects of the publication ban outweigh the deleterious. The court listed the alternatives which it considered preferable to a ban as including, adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection, and providing strong judicial direction to the jury (Dagenais at 319).

The majority judgment was strongly rejected by the three dissenting judges. In particular L’Heureux Dube J rejected the idea that a publication ban for a fair trial excessively restricts free speech, and instead correctly noted that free speech is merely temporarily curtailed (Dagenais at 345). Gonthier J made the point that lost advertising revenue cannot justify risking an accused’s right to a fair trial.

It must be said that the argument in favour of broadcasting, at a time when two trials had commenced and two were about to commence, a ‘docudrama’ which had the potential to prejudice all four trials, was at best weak. It was hardly essential to democracy or to ensure public safety. ‘Rather, public attention was being focused directly on the specific facts before the courts and the guilt or innocence of the persons who stood accused’ (Dagenais at 361).

Even if there was a need, commercial or otherwise, to broadcast the program, it is doubtful there would have been any detriment caused by delaying the telecast until after the trials.

New Zealand

The New Zealand Court of Appeal had the benefit of reviewing the decisions in Glennon and in Dagenais in a contempt case, Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563. A man faced various charges concerning an attack which seriously injured a police officer; the Gisborne Herald published information that the accused was on bail and facing other charges concerning violence. The media organisation was found guilty of contempt before the Full Court of the High Court ([1995] 1 NZLR 45).

With one exception, the media organisation’s appeal was dismissed. The New Zealand Court of Appeal agreed with the Full Court that by publishing the material there was a real risk of interference with the administration of justice — in this case with a fair trial. The Court endorsed the finding below that in the event of conflict between the concept of freedom of speech and the requirements of a fair trial, other things being equal the latter should prevail. The Court made clear that:

Contempt is directed to the protection of the public interest in the due administration of justice by an impartial Court. Fair trial values are a protection both to the public in respect to the generality of cases as well as the particular case and to the accused in the particular case. Fair trial is not a purely private benefit for an accused. The public’s confidence in the integrity of the justice system is crucial. The law of contempt is concerned preventing prejudicial publicity rather than minimising its impact at trial.[22]

Like Canada, New Zealand had to balance the right with the freedom in the context of their Bill of Rights. But unlike Canada, the Court of Appeal held that ‘the assurance of a trial by an impartial court is essential for the preservation of an effective system of justice’.[23]

The Court said that New Zealand would not follow Canada’s approach. First, each jurisdiction had its own peculiarities, and while each would endeavour to comply with international obligations, ‘the complex process of balancing the values underlying free expression and fair trial rights may vary from country to country’. Second, the NZ Bill of Rights affirmed fair trial rights as a ‘guaranteed minimum right’, whereas freedom of expression had to be read subject to other rights. Third, there is a lack of data on the effects of prejudicial media information on juries to justify any change to the existing balance between the right and the freedom. Fourth, the alternatives suggested by the court in Dagenais were not considered to be ‘adequate protection in this country against the intrusion of potentially prejudicial material into the public domain’.

The appropriate test for New Zealand was expressed in the following terms:

So far as possible both values should be accommodated. But in some cases publications for which free expression rights are claimed may affect the right to a fair trial. In those cases the impact of any intrusion, its proportionality to any benefits achieved under free expression values, and any measures reasonably available to prevent or minimise the risks occasioned by the intrusion and so simultaneously ensuring protection of both free expression and fair trial rights, should all be assessed.

And,

The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot both be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial. [Gisborne Herald at 574-5]

The important point to make is that where there is any doubt between competing policy considerations, the accused’s right to a fair trial is of critical importance, and in New Zealand, a right not to be compromised.

England

The key approach to the problem of adverse pretrial publicity in the United Kingdom is contempt law. In the last few years there have been six cases where ‘proceedings have been halted or convictions have been quashed, at least in part on the basis of judicial acceptance that pre-trial publicity rendered, or would render, a fair trial impossible’.[24]

Recognition of the adverse effects of the media on a criminal trial is not new. In 1943 the Court of Criminal Appeal quashed the larceny conviction of an accused, despite ‘overwhelming evidence’, because a list of 40 previous convictions had been read out in court and published in a local newspaper.[25] In 1969, when Ronald Kray was facing a second murder trial, his Counsel was granted leave of the court to examine the jurors as they came to be sworn in, because newspapers had published details from the first trial where Kray had been found guilty of murder, and had manufactured ‘facts’.[26]

In 1991 three accused had their convictions quashed for crimes under the Prevention of Terrorism Act 1984, involving two counts of conspiracy to murder because that the trial judge’s warnings to the jury were not enough to overcome the impact of the media coverage on the fairness of the trial, and the judge should have discharged the jury and ordered a re-trial.[27] While the media coverage over a 24-hour period was extensive, and included print, radio and television, it was arguably no worse than in Glennon where no retrial was ordered although the publicity lasted four years.

In Taylor & Taylor, two sisters had their conviction for murder quashed, in part because of the extent of the adverse publicity and because the publicity made it impossible for a retrial and no retrial was ordered.[28] Significantly no retrial was ordered even though there had been no prosecution for contempt at that stage. By comparison, in Glennon, Hinch had been gaoled for risking Glennon’s fair trial, and yet Glennon was denied comparable justice.

English courts demand that the trial judge should go beyond simply providing a warning to the jury in cases where there may have been some prejudice. In such circumstances the trial judge will be expected to investigate the extent of any contamination of the jury, and in doing so apply the test in Gough: ‘whether there is a real danger of bias affecting the mind of the relevant juror or jurors’.[29] Had this test been applied in Glennon the jury would surely have been discharged.

The supremacy of an accused’s right to a fair trial has been upheld in Wood, where the accused had pleaded guilty to possession of Semtex, an explosive substance used by terrorists. Despite his plea the conviction was quashed.[30] Staughton LJ held, that ‘Wood was entitled to a fair trial. All told, we consider that he did not have one. The Latin maxim that justice must be done though the heavens fall applies even in times of terrorism; or at least we have not yet been driven to abandon it.’ The decision in Glennon suggests the Australian approach has abandoned the supremacy of an entitlement to a fair trial.

In contrast with the other English cases on point, Rosemary West was unsuccessful in her appeal against convictions including ten counts of murder, and indecent assault.[31] Her appeal was based, among other grounds, on prejudicial publicity. Arguably the court was able to reach such a controversial conclusion because, Mr West had been the focus of the adverse publicity, and where Mrs West had been the target it was not of sufficient gravity to taint a properly directed jury.[32]

Conclusion

No-one could seriously deny that freedom of speech is fundamental to a democratic society. Similarly, a feature of any democratic society is that a citizen has the right to be tried fairly before that person may be denied their liberty. Societies that fail in either respect are correctly described as tyrannical or totalitarian. While it is true that on occasions freedom of speech may compete with ‘fair trial’ rights, it should never be a case of one dominating the other to the point of extinguishment. Instead it should be a question of timing, and so there may be occasions where freedom of speech is merely temporarily delayed in the interests of ensuring a right to a fair trial.

The decision in Glennon is neither good public policy nor good law. On the one hand it asserts that someone can be gaoled for contempt for a ‘substantial or real’ risk of prejudicing a fair trial, and yet on the other hand the person whose trial is at risk is unable to obtain a remedy beyond the rhetoric that the system will do its best to reduce the effect of the adverse publicity. This approach places too much faith in assumptions that are at best merely hopeful.

There is insufficient research evidence to rely on the assumption that court proceedings can undo the effect of adverse pre-trial publicity. When a person has been gaoled for a substantial risk of prejudicing another’s trial, it cannot be said that the latter had been proven guilty beyond reasonable doubt. There must be reasonable doubt because inadmissible and inappropriate information may have been used by the jury to reach their verdict.

In this situation, regardless of any remedial technique such as a judge’s direction to the jury, nothing short of the United States jury selection voir dire could undo the damage. With this in mind, Australian law is out of step with all but Canada after the Glennon decision.

Unlike Canada, Australia has no Charter to dictate the status of fair trial rights and freedom of speech. If Australian law is not prepared to deploy the measures available in the United States or recommended by the ALRC, it should have remained in step with both England and New Zealand, and guaranteed the right of an accused to a fair trial. Fear of public outrage is no excuse for allowing the media to prejudice an accused’s trial: it is better to let one guilty person go free than to gaol an innocent one.

References


[*] Allan Ardill is a PhD candidate at the Faculty of Law, Griffith University, Queensland.

[1] Law Reform Commission of NSW, ‘Criminal Procedure, Procedure from Charge to Trial: Specific Problems and Proposals’, Discussion Paper 14, February 1987, p.565. And see generally Australian Law Reform Commission, ‘Contempt: Summary of Report’, Report No 35, AGPS, 1987.

[2] Law Reform Commission of NSW, p.565.

[3] Law Reform Commission of NSW, p.572-3.

[4] In each jurisdiction covered later in this paper the judiciary was concerned about this very point, see for instance, Stroble v California [1952] USSC 62; 343 US 181 (1951) at 201, Re Dagenais et al and Canadian Broadcasting Corp. et al (1994) 94 CCC (3d) 289 at 322, Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563, at 570, 574-5.

[5] In Glennon, the majority comprised Mason CJ and Toohey J Brennan J and Dawson J; the minority of Deane, Gaudron and McHugh JJ gave a joint judgment.

[6] Per Mason CJ and Toohey J at 602-4: ‘In our view … matters of mere conjecture or speculation’: Brennan J did not address this issue other than to say at 610 that appropriate directions could overcome any such risk.

[7] Mason CJ and Toohey J at 598 and 605, and Brennan J at 613: ‘clearly some risk … but it does not follow that where a punishable contempt has been committed, the trial must be aborted’.

[8] Kennedy, Duncan, ‘Form and Substance in Private Law Adjudication’, (1976) 89 Harv LR 1685 at 1732; and see Claire Dalton, ‘An Essay in the Deconstruction of Contract Doctrine’, (1985) 94 Yale Law Journal 997, at 1006.

[9] Per Brennan J at 613 in Glennon, but see also Mason CJ and Toohey at 598-9 and 605-6 where they argue the test for contempt is not as strict as the test for aborting a trial due to prejudice.

[10] Per Mason CJ at 31 in Hinch. Mason CJ agreed with the trial judge’s finding that of the 200,000 listeners, 100,000 were from the area from which the jurors would be selected.

[11] Per Wilson J in Barton v R [1980] HCA 48; (1980) 147 CLR 75, at 111, cited by Mason CJ and Toohey J at 599 in Glennon.

[12] See, eg, Ellsworth, P.C, ‘Some Steps between Attitudes and Verdicts’, in Reid Hastie (ed.), Inside the Juror: The Psychology of Juror Decision-Making, Cambridge Uni Press, 1993, pp.42-64; Casper, J D and Benedict, K.M., ‘The Influence of Outcome Information and Attitudes on Juror Decision Making In Search and Seizure Cases’ in Reid Hastie (ed.), above, pp.65-83; Ogloff, J. and Vidmar, ‘The Impact of Pre-Trial Publicity on Jurors’, (1994) 18 Law & Human Behaviour 507-25.

[13] For instance, the cases listed in ref. 4 above.

[14] Dagenais at 322 per Lamer CJC, Gisborne Herald at 575 per Richardson J, R v Kray & Others (1969) 53 Cr App R 412, at 414 per Lawnton J.

[15] Glennon, per Brennan J at 613

[16] R v McCann (1991) 92 CAR 239, and R v Taylor & Taylor (1991) 98 CAR 361, and both were cited in [1996] Crim LR 622, at 624-5.

[17] The Australian Law Reform Commission above ref. 1; NSW Law Reform Commission, ‘Criminal Procedure Report, The Jury in a Criminal Trial’, March 1986; and NSW Law Reform Commission, above, ref. 1.

[18] Criminal Procedure Act 1986 (NSW), s.32(3).

[19] US v Edmond 886 F. 2d 442 (DD Cir 1989) where the trial judge’s decision to exclude all non-media spectators from the court was held too drastic. Likewise in Ip v Henderson 710 F. Supp. 915 (SDNY 1989), US v Soussoudis 807F. 2d 383 (4th Cir. 1986), Seattle Times Co v US District Court [1988] USCA9 489; 845 F. 2d 1513 (9th Cir. 1988), and In re Petitions of Memphis Pub. Co. 887 F. 2d 646 (6th Cir. 1989).

[20] Global Communications v Canada (1984) 10 CCC (3d) 97, per Thorson JA, at 111- 112.

[21] Per Lamer CJC, at 316, with whom the majority agreed.

[22] Per Richardson J, [1995] 3 NZLR 563 at 569.

[23] Per Richardson J, [1995] 3 NZLR 563 at 571.

[24] Corker and Levi, ‘Pre-trial Publicity and its Treatment in the English Courts’, (1996) Crim LR 622, at 624. Those six cases are not specifically discussed there, nor in this article. Also see, Naylor, Bronwyn, ‘Fair Trial or Free Press: Legal Responses to Media Reports of Criminal Trials’, (1994) 53(3) Cambridge LJ 492.

[25] Dyson v R (1943) 29 Cr App R 104.

[26] R v Kray & Others (1969) 53 Cr App R 412.

[27] McCann & Others (1991) 92 Cr App R 239.

[28] Taylor & Taylor (1994) 98 Cr App R 361.

[29] R v Gough [1993] UKHL 1; [1993] AC 646 cited and approved in Blackwell & Others [1995] 2 Cr App R 625.

[30] [1996] 1 Cr App R 207, a retrial was ordered.

[31] West [1996] 2 Cr App R 374.

[32] Staughton LJ in West at 385-6.


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