This week brought a confrontation between a Channel 7 news team and the trial of a man accused of throwing his fiancee to her death from the balcony of a seventeenth floor unit. This man is on bail and faced the usual media scrum as he made his way into court for his murder trial.
A news reporter repeatedly asked him questions - Why he was " jealous " ? Why he was " controlling " ? - and intimated that the channel was doing a show on this trial which would go to air that night.
More alarmingly, the publicity for this nightly news segment claimed that the show would present " explosive new evidence " that had not yet appeared in court. It was enough to cause the judge to delay the trial.
The law is quite clear that any person charged with a crime is " innocent until proven guilty " - and that the decision of guilt or innocence must be served by only the evidence that is presented at the court trial. There is a danger of contamination when both the judge and jury are exposed to news reports that exploit innuendo and unsubstantiated opinions.
In a court trial, the prosecution must present a case that remains within the bounds of the rules of evidence. The person on trial is charged with a particular crime and evidence of other criminal charges or convictions are usually withheld from the jury as a matter of course. No such restriction applies to the media and they are free to delve into past history - and speculate on how this applies to the case before the court.
This trial has caught the public's attention and the news media is giving it priority. The resulting clash between the public's " right to know " and the need of the media to keep their stories within legal bounds creates an impossible situation. The only real option seems to be " sequestering " the jury - locking them away from all possible news sources for the duration of the trial. That is both costly - and contains a risk that pre-trial publicity will already have done damage.
Judges have the right to impose news suppression orders but many high profile celebrities break these to keep their ratings in the public eye - and gladly suffer the consequences. The fall out from the murder of Jill Meagher and the breaking of suppression orders is still before other courts and the light gaol sentence for a person who caused the death of an innocent man is just starting to enrage public opinion. For better or worse - the matters before courts need to be in full public view.
It seems that we have an impossible situation. It is the job of the media to present the news to the public and because they face competition in a commercial world they need to create a sensationalist perspective to attract and hold the attention of viewers. This contrasts with the duty of the judge, who must ensure that the matter both he and the jury considers is restricted to the evidence that is put before the court.
Of course, news media stories pull in both directions. There are times when a guilty party attracts a sympathy reaction that sways a verdict of " not guilty " - which is obviously more emotional than practical, but it also tends to send some people to prison where the facts presented leave an obvious doubt.
At least it presents work opportunities for the legal profession. Once the case has settled into obscurity and the fanfare has ceased, the road is open to an appeal on the grounds that publicity distorted the facts considered - and led to a mistrial !
Of course, that only goes in one direction. Under our " double jeopardy " laws, once a murderer gets a " not guilty " verdict, he or she is home free !
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