Law Media and Communications Article 2022

Running head: LAW MEDIA AND COMMUNICATIONS
LAW MEDIA AND COMMUNICATIONS
Name of Student
Name of University
Author Note

1LAW, MEDIA AND COMMUNICATION
Fair Trial and Pre-Trial Publicity
The right to fair trial is an important and absolute requirement for the rule of law. A fair
trial can be seen to be preventing an innocent person from being convicted of the crimes they
have not committed. As mentioned in the case Dietrich v The Queen (1992)by the judges, the
right to fair trial can be seen as ‘a central pillar of our criminal justice system’. By way of a fair
trial the life, liberty, reputation and other fundamental rights of a person are safeguarded. For the
integrity and moral legitimacy of the trial and for maintaining the confidence of the public in the
judicial system the fairness of a trial is very essential. For the protection of vulnerable witnesses
and the interests of the national security both common law and the statutes are seen to be
imposing certain limits towards the rights to fair trial. There are various Commonwealth laws
that can be seen, for national security reasons, to be altering the procedures of the fair trial
(Gooding and O'Mahony, 2016). Some of the laws are justified however the application of most
of these laws needs careful scrutiny.
The right of fair trial is recognized as fundamental right that is recognized under the
provisions of the common law (Flynn et al, 2016). However the provisions which would be
amounting to fairness of a trial have changed significantly over the time. In the earliest forms of
the criminal trials no scientific or rational concepts were used for seeking the truth. In multiple
cases it was seen that the guilt and acquittal of any person was achieved by means of appealing
to God. Most of the important legal reforms were seen to be happening in 19th century. The
convicted were given the rights for having a lawyer for representation in the trial, for calling the
witnesses and giving their own evidence during this century.

2LAW, MEDIA AND COMMUNICATION
Certain elements of a fair trial are set out under the provisions of Article 14 of the
International Covenant on Civil and Political Rights. The first element is that the court should be
‘competent, independent and impartial’. The second element is that both the trial and the
judgment should be held in the public. The third element is that there should be presumption of
innocence until the guilt is proven. The next element is informing the defendant of the nature and
cause of the charges made against him. Another element mentioned under the provision of this
Article is that the defendant should be given enough time and proper facilities for the preparation
of the defence. The defendant under the provision of this Article should be tried without any kind
of undue delay. Another element under this Article is that trial of the defendant should be done in
his presence and the defendant should have the right to be defending himself either by himself or
by any legal assistance he chooses, and if he does not have any legal assistance, he has the right
for having a legal assistance being assigned to him, and if he does not have the means to pay for
it the assistance to be provided without any payment, as per the requirements of the justice.
Another element is that the defendant should be given the opportunity for examining or having
examined any witness who are present against him and he should further be having the
opportunity for obtaining the attendance and the examination of the witnesses standing for him.
The defendant under the provision of this Article is entitled for the ‘free assistance of an
interpreter if he cannot understand or speak the language used in court’. The defendant is further
entitled for the disclosure of the materials helpful for either weakening the case of the
prosecution or for strengthening his case. The final element in a fair trial is that a defendant is
seen to be having the right to not be compelled for testifying against him or for confessing any
guilt.

3LAW, MEDIA AND COMMUNICATION
Legal contempt can be defined as the interference of the media with the proper course of
justice. The operations of the Court can be done properly only when there is no outside
interference to the enforcement of the judgments. The publication of any report before a trial
providing the details of the previous criminal convictions of the defendant is seen as a contempt.
Legal Contempt however cannot be seen as a preventive measure for the prejudice of the juries,
it is more of a deterrent than a preventive measure. As there is a high chance of the judge or the
juries for becoming prejudiced towards the defendant, the chances of the defendant to get fair
trial get reduced. The antecedents of the defendant are not to be revealed until the judgment is
made for the defendant to get the scope for a fair trial. Although open justice is recognized as
one of the fundamental principles of the system of government. But in many high profile trials
there is often a conflict present between the system of open justice and the potential for a
negative publicity of an accused for a fair trial. The question that arises in this context is that if
the jurors find about the previous convictions of an accused or if the jurors get access to any
material that is not seen to be the part of the trial would the jurors be ignoring those facts if they
are directed by the judges to do so (Brooks, 2017). Another question that arises is would a
suppression order even be effective in the age of digitization.
The most prominent feature of a fair trial is that any person should not be deprived of his
freedom by the state unless he has been found guilty beyond reasonable doubts. It can also be
seen as one of the most prominent features of a democratic society. Another prominent feature of
a democratic society is the right of a person for having free speech. Right to free speech, like the
right to free trial, is also defended by the courts. However in reporting of a crime concerning the
proceedings before or during a trial, a conflict can be seen to be arising between the right to free
speech and right to fair trial.

4LAW, MEDIA AND COMMUNICATION
The responsibility of a jury is to determine a case based only on the evidence that have
been admitted before the court and not on any prejudicial information gathered from any outside
source. There have been various rules and procedures developed by the Courts and Parliaments
in the countries having common law for the prevention of the juries to be considering any pre-
judicial information for facilitating objectivity, rationality and the right of a person to free trial. It
can be seen that not every pre-trial publicity would make the jury be prejudiced towards the case.
However the extent of the adverse publicity, surviving the contempt laws and any other remedial
measures, to be contaminating the jury is not measurable (McEwen, Eldridge and Caruso, 2018).
The decision of the High Court in the case R v Glennon (1992) was seen to be standing in
the way of an accused person’s right for receiving a fair trial after the publication of inadmissible
and prejudicial materials prior to the trial. After this decision it was seen that the right of an
accused to be having a fair trial should be competing with the expectations of the community that
an accused would be brought to trial if charged with any serious criminal offence.
In the case it was seen that a Roman Catholic priest, Glennon, was convicted on the
charge of indecent assault of a girl. He was seen to be appearing as a Crown witness in another
assault case. In this case the Counsels were seen to be cross-examining Glennon about his
previous conviction and accused him of assault. There was excess media coverage on those
allegations. Glennon was seen to be convicted of multiple charges of sexual offences. There was
an excess coverage of the case by the media yet the stay of the proceeding on the basis of
prejudicial publicity was denied twice and Glenn was subsequently convicted. In the case the
authority for the preposition was that for concluding that an accused had been denied a fair trial
the mere possibility of a jury to be aware of the accused person’s previous convictions for similar
crimes would never be enough.

5LAW, MEDIA AND COMMUNICATION
The stories that were told by the majority and the minority of the judges in the Glennon
case, in support of the different conclusions that were reached, had been seen to be varying in a
considerable manner. The minority was seen to be taking the inherent risk for the exercise of
their discretion on the basis of their version of the case and the fairness standard. The minority
were making an attempt for the protection of a person’s liberty from unfair trials. The decision of
the majority was seen to be using four techniques that are used in the avoidance of tougher
decisions. It was claimed firstly by the majority that:
‘In case of occurrence of a punishable contempt, a real risk of prejudice can be seen to be present
— perhaps, for the adoption of the formulation by Mason CJ, a substantial risk for seriously
interfering with a fair trial. But it is not seen to be following that, in case there has been a
punishable contempt of court committed, the trial needs to be aborted.’
It was observed that although the system of the protection of the juries from any kind of
external influence is not seen as perfect, yet a trial that had been conducted with all the
safeguards provided by the court would be described as a trial as per the law and there would be
no miscarriage of justice after any such trial.
The second claim in the majority decision was the belief that for ensuring a fair trial an
appropriate warning from the judge would be enough. This can be said to be nothing but a
fiction. As per various researches serious doubts were raised about the assumptions of a jury to
be separating other materials from any evidence. In furtherance the assumption that a trial judge
would be able to be minimizing the prejudicial publicity impact on the trial had also been
challenged.

6LAW, MEDIA AND COMMUNICATION
Thirdly it had been argued by the majority the right of an accused for a fair trial had to be
balanced with the expectation of the community that an accused facing serious criminal charges
needs to be brought to trial.
The fourth claim in which the majority was seen to be relying upon was the ‘floodgate
fear’. As per the judges it would be ‘adventitious if trials could be halted by a punishable
contempt’. This argument can be seen to be illogical as each of the cases would be needed to be
determined on their own merits.
Materials that can be seen relevant to the above discussion have been published by both
the NSW Law Reform Commission (NSWLRC) and the Australian Law Reform Commission
(ALRC). Interestingly, the NSWLRC can be seen to be recommending against the United States
approach of the use of voir dire examinations of potential jurors for testing preconceived views
of the case, in the mean time also admitting that the fact without this tool, ‘there is no really
effective way of knowing whether potential jurors have been influenced by pre-trial publicity’.
The ALRC was also seen to be recommending against the American voir dire juror
interrogation. It was preferred by them that in case a contemptuous publicity does occur, the
judge needs to be exercising discretion for questioning the jurors for the identification of the
extent of any adverse impact. The ALRC further recommended that contempt should be
providing a ground for a change of venue in the subsequent trial, or postponing of the trial, and
that judges should be having the power for ordering conditional verdicts such as a retrial where it
can be seen to be appropriate.
The other reforms that had been suggested were the election of a judge alone trial, and for
stricter rules for limiting of the publication of pre-trial materials. The election of a judge alone

7LAW, MEDIA AND COMMUNICATION
trial can be seen as a law in the New South Wales with the right of the prosecution for veto. The
limitation of publication affords no safeguard where the rules are ignored.

8LAW, MEDIA AND COMMUNICATION
Reference
Brooks, T., 2017. The right to trial by jury. In The Right to a Fair Trial (pp. 83-98). Routledge.
Dietrich v The Queen (1992) HCA 57, 177 CLR 292
Flynn, A., Hodgson, J., McCulloch, J. and Naylor, B., 2016. Legal aid and access to legal
representation: redefining the right to a fair trial. Melb. UL Rev., 40, p.207.
Gooding, P. and O'Mahony, C., 2016. Laws on unfitness to stand trial and the UN Convention on
the Rights of Persons with Disabilities: comparing reform in England, Wales, Northern Ireland
and Australia. International Journal of Law, Crime and Justice, 44, pp.122-145.
International Covenant on Civil and Political Rights
McEwen, R., Eldridge, J. and Caruso, D., 2018. Differential or deferential to media? The effect
of prejudicial publicity on judge or jury. The International Journal of Evidence & Proof, 22(2),
pp.124-143.
R v Glennon (1992) HCA 16; (1992) 173 CLR 592