Portrayal of accused and the law

Dave Bath at Balneus has an interesting post comparing the court sketches of Dr Haneef, noting that the sketches in the Murdoch press make Dr Haneef look somewhat like a Neanderthal.

Now it could just be a matter of personal interpretation. I must confess that when I worked in and around the court system, I used to occasionally do sketches of people (witnesses, barristers etc). Some sketches were better than others. Some people might have been a bit offended had they seen some of my renditions. Sometimes a sketch took on the character of a parody, even when I hadn’t intended it to do so. Perhaps that’s what happened to the Court artist.

But Dave makes another interesting point in a later post – is it legal to present a defendant in a way which is unflattering and may lead members of the public to draw adverse conclusions about that person?

This area of the law is called “contempt of court by publication”, and it is a somewhat byzantine jurisdiction. There is an inherent jurisdiction in the court, and also legislative provisions preventing contempt of court. Contempt by publication covers the publication of material which might tend to adversely influence a jury before trial. There is of course a balance between freedom of speech and the right of a defendant to a fair trial. The question is also how far media representations do actually influence jury members. According to the WA Law Reform Commission Report on Contempt, a study (M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity (2001)) found:

1. Jurors often believed that newspaper coverage of their trial was inaccurate and/or inadequate.

2. Juries were equally successful in identifying the relevant issues regardless of whether the publicity was negative or positive towards the accused. Also, the quantity of negative publicity did not seem to make a difference to the proportion of verdicts that were ‘safe’.

3. In trials where the evidence was equivocal [that is, not strong in favour of guilt or clearly insufficient]…there was greater reason to believe that publicity may have affected the verdict.

As a lawyer who has seen cases that she has worked on reported in the press, I would agree that you really can’t trust press reports, and that it is quite a different thing to sit in court and watch witnesses testifying to reading about it in the paper. Also, seeing someone in the flesh is very different to seeing them in a photograph or even on television. Personally, I discounted much of what I had read or seen in the press in favour of my own first-hand impressions. But I don’t know if I was influenced subconsciously in any way.

In fact, this is not the first time issues like these have arisen in a high profile case. My mind went back to the media coverage of that terrible event, the Port Arthur massacre, perpetrated by Martin Bryant. Some of the papers, including The Australian, ran a picture where the Bryant’s eyes had apparently been digitally altered in order to emphasise the whites of his eyes, which gave him a crazed look. The then Director of Public Prosecutions, Damian Bugg, issued writs against various media outlets for contempt of court in the light of concern that the sensationalised media reporting would prejudice the defendant’s chance of getting a fair trial (and thus make Mr Bugg’s job much harder).

However, the then chair of Australian Press Council, David Flint, argued that Australian newspapers regularly ignored contempt-of-court provisions, indicating that the law needed to change, rather than the newspapers.

Clearly it’s not a straightforward question. I will be very interested to see what Dr Haneef looks like in a photo, and whether the Murdoch press’ portrayal is fair or not.