By MARK PEARSON Follow @Journlaw
[For readers outside Australia, please see background and coverage links in the Courier-Mail]
Child sex crimes rank among the most offensive and upsetting actions of human beings upon each other, so it is little wonder that people want to vent on social media when an arrest occurs in a high profile case like the Daniel Morcombe murder.
Ordinary citizens need to realise that their comments on Facebook, Twitter and other websites are ‘publications’ in the eyes of the law, and there are three types of restrictions in Queensland applying to such cases.
1. Suppression order on identities of witnesses. In this case the main factor limiting publication of the accused’s identity was a non-identification order placed on the names of witnesses during an earlier inquest into the victim’s disappearance. The Queensland Coroner lifted this ban on the identification of the accused on the afternoon of August 16, after media representation, so he can now be named as part of a fair and accurate report of court proceedings. See: http://www.abc.net.au/news/2011-08-16/morcombes-alleged-killer-named/2842126
2. Ban on identification of the accused in certain sex cases. The law in Queensland is similar to that of South Australia, which I have blogged about previously. In Queensland, the preliminary proceedings can be reported, but the identity of the accused must remain secret until after they have been committed for trial (Criminal Law (Sexual Offences) Act 1978, s. 7). It carries a two year jail term. The laws differ from those in other Australian states and territories where only the identity of the sex crime victim is suppressed. (In other states and territories, the accused in a sexual crime can be identified unless their identity might lead to the identification of the victim or unless a judge or magistrate decides to suppress the identity on other public interest grounds.)
3. Ban on prejudicial coverage. Once a suspect has been arrested OR charged with a crime, there are tough restrictions about what can be published about the matter in that jurisdiction. This is because our justice system works on the assumption that an accused is innocent until PROVEN guilty in a court of law. Just because police have arrested someone does not mean that person is guilty. There are too many examples of miscarriages of justice over the years for us ever to assume that an arrest means guilt. Until the person has been either convicted or acquitted, the matter is ‘sub judice’ (Latin for ‘under a judge’). You face serious fines and jail terms for sub judice contempt, as talkback hosts Derryn Hinch and John Laws have learned.
As we explain in The Journalist’s Guide to Media Law, the main areas of concern during the sub judice period include: any indication of prejudgment (whether as to guilt or innocence), publishing potentially inadmissible evidence, publishing witnesses’ statements beyond what is given in evidence in court, revealing criminal records and alleged confessions of the accused, or identification of the accused where it may be an issue in the trial (always assume it will be).
It is no defence to your sub judice contempt charge that others did the same thing (just as it is no defence to a speeding charge to say that you were following a car going 20 km/h faster).
Adverse publicity can even result in a mistrial or even an acquittal, which is the last thing most social media commentators would want in a sex or murder trial.
It is especially difficult for social media users and bloggers untrained in media law to navigate all these rules so the best policy is to avoid comment on any matters before the courts until the justice process has run its course. Leave that to the trained, professional journalists who report with the backing of experienced editors and legal advisers.
© Mark Pearson 2011
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.