The price of blogging

Damn. I suspect there’s a downside to all this blogging: I’m out of practice when it comes to two-way debate. This afternoon, I was part of a panel at the Crown Prosecutors’ Conference on Human Rights in an Age of Terror. The other speakers included Peter Faris and Mirko Bargaric (who either don’t read this blog or bear no grudges – and I assume the latter.) Most of the afternoon was a fight between Faris and Julian Burnside on the threat posed by terrorism.

I deliberately stayed out of that, instead arguing about less extreme clashes of rights and focused on Keelty’s call for a terror blackout. Of course, I also criticised the OPP’s and Court of Appeal’s efforts in suppressing Underbelly, arguing that it might made Goussis’s trial less fair by creating a demand (readily met) for information about him, including the dangerous fact that he had a prior conviction for a gangland murder. Needless to say, my views on Underbelly didn’t go down well and one Crown Prosecutor (Geoffrey Horgan, I assume, though I have no idea who’s who) ran the arguments that the suppression was the fault of Nine in failing to ask permission and that Underbelly would have prejudiced the jury, getting a round of applause and the only agreement for the afternoon from Bagaric and Bunside. And, a rarety for me, I let it ride and am now experiencing ’15 minutes later’ remorse.

So, I’ll just quickly get off my chest what I should have said: that ‘prejudice’ in this context is based on an assumption: that jurors aren’t (or can’t be trusted to be) discerning users of the media.  And there are three things to say about such an assumption. First, that its ubiquity amongst lawyers (who, of course, are assumed to be discerning) has the inevitable and very unfortunate corollary that jurors, and hence the wider public, must be denied access to media about ongoing prosecutions. Second, that it is 100% incompatible with the role jurors are given in the criminal justice system, which assumes that they are discerning when it comes to witness testimony, other evidence and counsels’ arguments. And, third,  that’s it’s inconsistent with empirical evidence. Michael Chesterman’s study of real NSW jurors involved in high profile trials, where he questioned them about their use of the media, reached the following conclusions:

  1. On account of legal restrictions on publicity and the considered use of remedial measures, jurors are normally not exposed either (a) to pre-trial specific publicity which is both intensely prejudicial in content and published close to the time of commencement of the trial, or (b) to publicity during the trial which is intensely prejudicial.
  2. On account of these limits on the content and timing of publicity, jurors overall are not likely to recall pre-trial specific publicity, even in general terms, let alone in detail. This broad generalisation is a factor of major importance even though there are significant exceptions to it and even though it does not deal with generic publicity. But it has validity as a generalisation.
  3. While jurors are quite likely to track down at least the newspaper coverage of the trial itself, they are generally not vulnerable to influence from biased or incomplete coverage because they frequently identify, and at times are quite scornful about, the bias and incompleteness.
  4. A significant proportion of the juries discharge their duty, spelled out to them by the judge, to scrutinise the evidence carefully and, if necessary, at length. An important factor inducing them to do this is the requirement that their verdict be unanimous. Where this process is in fact carried out in their deliberations, any influence exerted by publicity on the perceptions of individual jurors is quite likely to be overridden by contrary evidence, or (if the evidence suggests the same conclusion as the publicity) to be superseded as a factor determining the verdict. In this sense, some juries, though by no means all, confront or ‘manage’ the publicity successfully.
  5. Both in this context and elsewhere, frequently jurors – individually and collectively – attain a significant level of independence in both thought and action. While this may at times lead them into pursuing irrelevant lines of inquiry, it helps to prevent them simply caving in to media pressure.

The jurors Chesterman studied don’t sound remotely like the jurors that the Supreme Court and the prosecutors believe in. Underbelly isn’t the only fictionalised account that is in play here.

Well, that’s what I should have said (and it’s not exactly mind-blowing stuff.) I’ll have to make sure that this blogging doesn’t make me rusty. It’s a jungle out there…

[And now after a further couple of days, it’s worth also putting on the record – and getting off my chest – a response to the other part of what the prosecutor said, attacking Channel Nine for not supplying copies of Underbelly on request (rather than on subpoeana) and defending Jeremy Rapke for threatening to prosecute anyone who publishes any part of Underbelly.

Prosecutors have two powers: the power to prosecute and the power to seek court order to suppress contempts of court. (Technically, we all have both powers, but prosecutors can use both powers far more effectively than anyone else.) But both require that the prosecutors satisfy a burden of proof before a court. Prosecutors don’t have powers on their own to require anyone to produce evidence or to refrain from any action. In the absence of a court order, Channel Nine was entitled to both refuse to give anything to the prosecutors and to publish what it wanted (although, of course, it ran the risk of being prosecuted for contempt of court if it did the latter; although, equally, conviction would require proof to the appropriate standard in a court. Equally, as I’ve pointed out on this blog, Victorians have, since Channel Nine released Underbelly on DVD outside Victoria, been lawfully able to import and watch Underbelly (apart from the twelve Goussis jurors while the trial was ongoing.) Indeed, both people who say no to prosecutorial requests and Victorians like me who watch Underbelly are not only acting lawfully but doing things they have a right under the Charter to do.

So, when the prosecutor said that one justification for the suppression of Undebelly was Nine’s refusal to hand over its tapes on request, what he was actually saying was that one justification for the suppression was Nine’s lawful exercise of its rights. And, equally, when Rapke issued a press release that threatened a prosecution, not merely for unlawful contempts of court, but for behaviour that could not rationally be claimed to be a contempt of court (like me, or teenagers at the Melbourne Remand Centre, or Underbelly being shown to all manner of people who will either never be on a gangland jury or whose omission from eligibility could not possibly reduce the chances of getting a jury together for future trials), then he was using his powers of prosecution to deter lawful behaviour, indeed, behaviour that people had a right to do (not to mention acting in breach of his obligations as a public authority under the Charter.)

Prosecutors are given a lot of authority and are trusted to limit their coercive powers to unlawful behaviour. There shouldn’t be any controversy about the propositions that prosecutors cannot seek orders on the basis that anyone excerised their lawful rights or that prosecutors cannot threaten to prosecute lawful behaviour. That Australia’s prosecutors and the Court of Appeal alike – and even the president of Liberty Victoria – are happy to endorse the precedents set in this case are troubling and cast a shadow over arguments that prosecutors and courts can be trusted with wider powers to fight the scourge of terrorism.]

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