By MARK PEARSON Follow @Journlaw
It is timely that in the space of a week we should see the Human Headline (@HumanHeadline) Derryn Hinch released from jail for a publication offence and a serial offender receive a life sentence for the sex murder of teenager Daniel Morcombe.
We learned yesterday after Brett Peter Cowan was convicted of that 2003 crime that he had served time twice earlier for similar offences.
He is exactly the kind of individual that Hinch wants placed on a public sex offender register for exactly the reason most talkback callers and social media commenters are asking this question: How can we release such individuals anonymously into our communities when we cannot be sure they will not strike again?
Hinch asked it again this morning:
Hinch became the first Australian journalist jailed this millennium for a publishing offence when he was jailed for 50 days refusing to pay a $100,000 fine for breaching a suppression order on the prior convictions of Adrian Ernest Bayley – the accused sex murderer of ABC worker Jill Meagher in Melbourne in 2012.
In 2011 he was sentenced to five months of home detention for publicly naming two sex offenders at a rally and on his website in defiance of such anonymity orders.
In 1987 he was jailed on a contempt of court charge after broadcasting the criminal record of a former priest Michael Glennon accused of child sex offences and implying his guilt in his high rating Melbourne radio program.
It was only by a 4-3 majority that the High Court later stopped short of overturning Glennon’s conviction on those sex charges on the grounds of Hinch prejudicing his fair trial. (Glennon died in jail this year.)
Journalists and media law students have much to learn from the events of the past week.
While the crimes themselves left a trail of human destruction, the Hinch and Morcombe stories make for ideal case studies in a media law module covering open justice, contempt of court and court reporting – the exact module my students will be starting next week.
They will get to research and debate these kinds of important questions that arise from the week’s events:
- What public policy issues are at play that see a journalist jailed for reporting the past convictions of an individual convicted of a high profile crime?
- What does such a penalty say about Australia’s standard of media freedom?
- Why is Australia’s approach to this level of suppression different from that applying in the United States?
- Why should the mainstream media be prevented from reporting such material when social media platforms and certain websites are full of it?
- Why would Hinch’s blog and Twitter feed where he breached the suppression orders over Bayley not represent a ‘real risk of prejudice’ to the trial, when mainstream media coverage might do so?
- How can juries be quarantined from such information and – if they can’t – why shouldn’t the media be allowed to publish it?
- Do other methods of dealing with juries – judges’ instructions, training, sequestering etc – mean we no longer need to suppress such material?
- Are the past offences of such criminals matters of such overwhelming social importance and public concern that suppression of the details should be considered contrary to the public interest?
- Should the Courier-Mail’s front page heading of February 21, 2014 – ‘Daniel’s Killer’ – have forced the trial to be aborted? Should it be grounds for a sub judice contempt charge? Should it be grounds for Cowan’s appeal?
- How can a journalist report upon such proceedings in an interesting and timely way while navigating the various restrictions that apply?
- How ‘open’ should ‘open justice’ be in such high profile trials? Should cameras and smartphone recordings be allowed in court? Should tweeting and other social media usage be allowed in court?
- Is it appropriate in the modern era of communication that a major television network has to rely on a presenter standing outside a courthouse relaying sentencing information to the audience from a court reporter on the inside via telephone?
- How much social media commentary should be tolerated about such cases while an accused is facing trial?
I’m sure many other questions arise too – and would be keen for other educators, journalists, lawyers and students to use the Comments section here to pose them so my students can take them up in lecture and tutorial discussions.
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.
© Mark Pearson 2014