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.

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13 Comments

Filed under courts, criminal law, freedom of speech, judges, juries, law, media, Uncategorized

13 responses to “Portrayal of accused and the law

  1. Thanks. With the related point in the second post of mine you mention, is there anything about re-enactments of court/commission proceedings that misrepresent things too far? What if Downer and co in the AWB commission were grossly misplayed by actors?

  2. Dave, if the proceedings had already occurred or they were over, it would be okay. But if the proceedings were ongoing, and particularly if it was a jury case, they would probably be in contempt of court if the portrayal tended to prejudice the fair trial of the defendants…

  3. LDU

    Here is one photo – http://www.smh.com.au/articles/2007/07/20/1184560040251.html

    Personally, i think the murdoch sketch is crazy.

  4. No, not at all like the drawing. Hmm. Doesn’t look good, does it?

  5. marcellous

    I do wonder if we can get too precious about this. I don’t doubt that, after being in custody so long, Haneef didn’t look as cheerful as he did in the nice beach shot featured in the Saturday papers, but surely a jury (if it ever gets to that) will see Haneef in the flesh, and this is likely to have a more powerful impression on them than some subliminal recollection of a bad artist’s sketch? The real prejudicial effect of the sketch is on electoral politics rather than the trial, though even there it all goes into a pretty incalculable mix.

  6. Marcellous, that is why I found the study mentioned in the WALRC Report interesting. As I say, my own personal experience is that press stories didn’t affect my perception of evidence if I saw the real witnesses and exhibits.

    As far as I could see, many cases were not very well reported in the press, although I can think of one exception to that rule. Half the time they left out things I would have included. But then I find equitable remedies fascinating, I’m not sure I’m a good judge of things that would interest normal people. 😉 It did really make me wonder how accurate other media reports are?

    I don’t think it will ever come before a jury anyway. It looks like the Government will want to just pack this fellow back off to India. What a right royal mess the whole thing is! Pretty sad for this guy if he is totally innocent of any wrongdoing.

  7. LDU

    Marcellous,

    “I don’t doubt that, after being in custody so long, Haneef didn’t look as cheerful as he did in the nice beach shot featured in the Saturday papers”

    I doubt that he would evolve into a neanderthal after 20 days in custody.

  8. LDU: You say “I doubt that he would evolve into a neanderthal after 20 days in custody”. Non-surgical facial reconstruction in custody is all too common, but I’m not suggesting this happened here.

  9. pete m

    “all too common” – by whom?

    careful what you may be said to imply.

  10. On artists’ impressions, I recall during the Anita Cobby trial that the artists’ impressions of the accused were pixillated in one TV news report. I wonder if that was a compliment to the artist on the accuracy of the drawings?

  11. It’s no surprise how many judges, upon retirement, lash out directly at the media. It’s a very unusual situation where one side of the equation (the media) not only has access to a mouthpiece with which to express its views, but actually IS the mouthpiece, while the other side (the courts) is expressly prohibited by its own rules and conventions from even commenting in its own defence.

  12. marcellous

    If idenfication of the accused is in issue, then there would be reason for restricting the publication of likenesses of the accused, even bad ones.

  13. Pingback: Club Troppo » Missing Link (delayed, again)

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