What's
it about?
Recently a Supreme Court judge 'aborted' a murder retrial because he believed the
result might be prejudiced by information contained on an internet site known as Crime
Net. Justice George Hampel, a ranking Queens Council prior to becoming a judge, considered
the existence of information on the site to be so prejudicial to the defendant's interests
that he closed down the trial. The information gave details of the defendant's previous
trial, material that would not ordinarily have been brought to the attention of the jury.
What's a fair trial?
Why should information on an internet site interfere with the rights of a defendant to
get a fair trial? After all, as long as the defendant is represented by a lawyer and the
proceedings are refereed by a judge there shouldn't be a problem.
Most people agree that it is crucial that a defendant in any
trial, but particularly in a criminal trial, should be afforded a fair go. Lose and you go
to jail, or cop a fine, or at the least suffer irreparable damage to your reputation.
Nevertheless, this doesn't mean that everyone is entitled to the best defence, or even the
benefit of legal representation. The High Court spoke to this issue in a 1992 case called Dietrich
v R (by the way, the "R" stands for "Regina", the Queen, who is
the theoretical prosecutor in all criminal cases - "off with their heads!"). The
High Court decided that in a serious criminal case legal representation is
intrinsic to a fair trial, but it does not extend to civil actions (someone suing you) or
less serious criminal charges.
In the trial that was aborted the defendant had legal
representation, but that is only part of the recipe for a fair trial. There must also be
no prejudice to the rights of the defendant. If a judge believes that evidence would
unfairly prejudice a defendant, they will refuse to allow it to be introduced. For
example, if the juror knew a defendant had once been arrested on a similar charge, they
might believe that the defendant was more likely to be guilty even though the evidence did
not support that proposition.
Similarly, publicity or materials produced outside the court can
prejudice a trial. Let's say you're a jury member heading for court, casting an eye over
the day's headlines whilst sipping a cappuccino. Your eyes naturally go to the headline
"Mr X Must Be Guilty Says Wife". Is this likely to influence your attitude to
the defendant? Of course it is - no problem with that if you are a member of the public,
but as a member of the jury it is your role to determine the guilt or innocence of the
defendant on the basis of the evidence in court only. Why? Because in court
evidence is included or excluded on the basis of rules of admissibility, not the whims of
a journalist or the orders of a press baron. That's why we have laws, called sub judice,
that restrict the publication of details that might prejudice a court case. If a newspaper
were to divulge these sorts of details the proprietors would be guilty of contempt of
court.
What happened here?
Okay, so we've had a quick look at the laws that ensure there is fairness in a trial.
So what happened in this case? Crime Net is an internet site that provides details on
thousands of convicted criminals, apparently gathered from newspapers and court records.
You might think this is harmless, or indeed beneficial to the community. Shouldn't you
have the right to know who has been convicted of an offence in the past? And let's not
forget that court records are public documents.
But what if the site also contained information about alleged offences? Or a
juror could search the site and come across a convicted criminal with an identical name as
the defendant, mistakenly believing it is the same person? Justice Hampel stated that
Crime Net's information on the defendant contained details that were in part incorrect.
This was based on evidence in the original trial, which the judge believed was not
relevant to the retrial.
What
we think
The internet places untold amounts of information at our fingertips. And just as surely
there is a right to publish publicly available information. However, it's also true that
this is not an unfettered right. Whether Crime Net has committed a contempt against the
court is a matter for the law, but in our opinion there are also moral issues involved in
this affair.
Let's take a hypothetical situation, admittedly not entirely analogous, but instructive
nonetheless. You go to the bank to get a loan, but your application is declined on the
basis of a poor credit rating - your credit check shows that a summons was once issued
against you by an alleged creditor. You protest that the summons was baseless, later
withdrawn, and in fact never proceeded to a court hearing. Nevertheless this has
prejudiced your ability to get a loan. Is that fair?
It's clearly silly to suggest that Crime Net should be shut down. The internet is far
too large a beast to be contained by any sovereign State - at the least they could move to
an overseas base, and the owners have agreed to restrict the information they will list in
the future, adding appropriate warnings and disclaimers. But it is true that in the
information age it's all too easy to discover details of a person's life outside the
normal parameters of moral or legal restraint. Yes the internet presents dilemmas that
require stringent privacy laws, but if we want to continue to have the benefit of this
wonderful invention we'd better accept some self imposed regulation. So as they used to
say in Hill Street Blues, 'let's be careful out there'.
Read this: The legal information contained above is
intended to be general information about the law. It is not a substitute for legal and
other professional advice. Lawscape Communications P/L does not accept responsibility for
loss to any person, who either acts or does not act because of this information.
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