There was some degree of scoffing this week in some (unpublished) letters to the editor and from some people around the newsroom this week. They were holding their hands to their mouths over the word “”alleged” when Canberra Times news articles referred to the “”alleged theft” of the coat of arms from Old Parliament House.
The scoffing went along the lines, “”What do you mean, “”alleged”? Off course it was a theft. The emblem was in its rightful spot yesterday and today it is at the Aboriginal Embassy. Obvious isn’t it?”
Well, not quite.
Media organisations have to be very careful. You never know when a judge will take exception to a publication that might pre-judge issues at a trial and do you for contempt of court. The magic word “”alleged” means that the news report is not jumping to a conclusion of guilt.
There can be no doubt that the coat of arms was taken from Old Parliament House to the Aboriginal Tent Embassy, but that does not necessarily mean it was theft. One of the elements of the crime of theft is to have an intention to permanently deprive the owner of the property and an absence in a belief that you have a right to take the property.
For example, if I take a camera out of a second-hand store in the belief that it was the one stolen from my car last week, it will not be theft – even if it transpires that the camera was not mine after all.
I don’t want to canvas in detail issues that might be raised in the defence of those charged, but it has been apparent that those who took the coat of arms had some belief in their “”right” to remove it. Suffice it to say there are arguments about whether all the elements of the crime of theft are present. It is therefore unwise to pre-judge the case.
Other media outlets and, indeed, the police did precisely that, but courts tend to home in on the permanent printed form in these cases.
Usually contempt cases arise during the trial. In the US, juries in major cases are put into secure hotels each night and not give access to media reports of the trial they are covering so they cannot be prejudiced. This is because the US puts the public’s right to know ahead of the jury’s freedom of movement. In Australia (and Britain) the public’s right to know is put behind the jury’s right to freedom so the publication is restricted. The publication of prejudicial material – usually material that asserts guilt or innocence or pictorially identifies the accused when identification is an issue or discloses prior convictions – can result in a trial having to be abandoned because a jury might be swayed. In those cases the media will usually be cited for contempt.
With the information explosion, courts are going to find this issue more confronting.
In the Aboriginal Tent Embassy case, there has been a battery of publicity and a lot of assertions about whether a crime has been committed and a lot of material showing the coat of arms in the possession of named people at the embassy who are among the accused. This may not end up as a jury trial, so it may not matter much, but if it were to go before a jury, the usual pattern would be to allow for a period of time in which the amount publicity falls away and the memory of the earlier publicity fades away.
But now we have the internet. It means that the television images and sound bites that hitherto and disappeared from public eyes and ears are available at a much later date at the click of a mouse. It also means that the earlier newspaper articles are available much later at the click of a mouse.
As the internet permeates, this might be a growing risk. Many people these days when confronted with something they don’t know about head straight for the internet. Juries, upon being summonsed or after the first day of hearing, might search for information about the accused, including publicity at the time of the crime and prior convictions or charges.
In 2000 this very question came up after a Victorian Supreme Court judge aborted a murder trial because of an internet site that published lists of criminals and convictions – including those of the accused — convictions the jury would be otherwise be ignorant of. In Scotland last year counsel for the accused in the “”limbs in the loch” case cited old publications still accessible on the internet as grounds for a contempt ruling. In that case the judge, Lord Osborne, took a more sensible approach. He ruled (after the trial) that it must be assumed that jurors will follow directions to find only on the basis of what is put at the trial and not to hunt out extraneous material.
If the Osborne view does not prevail, newspapers might have to close their internet sites for the duration of trials where the accused has prior convictions or where there was big publicity at the time of the crime.
In the meantime, it certainly pays not to jump to conclusions about guilt, however obvious the facts may appear to some readers.