Does keeping the jury impartial mean keeping everyone else quiet?

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When Brittany Higgins, a former government official, came forward with her rape allegations, which she said took place inside Australia’s Parliament building, the whole country was paralyzed. Her allegations that she had been attacked by a colleague in the Defense Secretary’s office while she was sleeping after a night of drinking sparked protests by women across Australia demanding changes in a male-dominated political culture.

But this week, journalists and the wider public in Australia were given a stark reminder to be extremely careful about how they report and talk about the case.

A prominent television journalist won an award for her interview with Ms Higgins last year and praised Ms Higgins for her courage in her acceptance speech. That prompted the judge in the case to order a postponement of the trial, which was about to begin. The journalist’s remarks, the judge said, risked swaying the jury because they implied Ms Higgins was truthful.

The postponement has raised questions about whether Australia’s disregard for court laws strikes the right balance between freedom of expression and the right to a fair trial. We have previously written about how suppressive orders prohibiting coverage of sensitive cases have become more common in some parts of Australia and what some legal experts describe as a lack of confidence in juries’ ability to distinguish between what they read in the media and what they do do hear in the courtroom. Australian courts sometimes even require the removal of books written about a case or a defendant before a trial begins, temporarily censoring relevant information for everyone so it doesn’t reach just a handful of jurors.

Some Americans, accustomed to heavily televised court hearings, where reporters are given little access and where complainants, defendants and attorneys regularly give interviews during the trial, might think that Australian courts might be a little sloppy when it comes to regulating pre-trial information go too far.

But in Australia, there seems to be greater concern about how the case unfolds as a process through the media.

The judge in the case, Chief Justice Lucy McCallum, said she had “lost” her trust in the media to report responsibly on the case and gave a small refresher on the lower court’s contempt law.

“I am not confident that it was understood until this week that by sub-judice it is meant that an allegation made remains legally untested,” she said, “so that any comment about the allegation creator takes into account the circumstances of how she made it.” her credibility, how many times she said it and how she said it – all of these matters are in court.

Even workplace culture discussions “need to dance a delicate dance,” she said. “When it comes to handling an allegation, it’s very difficult to have that debate without commenting on improper treatment assuming the allegation is true.”

Johan Lidberg, associate professor of journalism at Monash University, said the handling of this type of case highlights the differences between the United States and Australia.

Americans, it is commonly believed by American courts, can make decisions without bias, even when there is reporting about the case that might lead them to advocate innocence or guilt. Suppression of First Amendment rights to protect a jury would generally not be permissible.

“There seems to be a much lower risk in the US of juries being under the influence of reporting simply because there always has been,” he said. “Whereas in Australia there is a tradition of trying to keep the jury from being swayed by anything beyond what is said in court.”

The problem for Australia is that in the internet age, tradition is becoming more difficult to uphold, given the unqualified opinions on social media that may presume guilt or innocence, and are often posted by people who do not have the same legal knowledge that legacy media do, he said.

The reckoning we’ve seen around the world about the treatment of women in recent years has also changed the way the news media reports allegations of sexual abuse, Professor Lidberg said, resolving a conflict between “hearing women and the naming of alleged perpetrators and the presumption of innocence.”

“Especially in sexual abuse cases, there used to be a lot of reluctance to report the names of the parties involved,” he said, adding that journalistic best practice is to keep names out of reporting to maintain the presumption of innocence and none Prejudice against potential jurors. “#MeToo changed everything.”

This poses new challenges of finding the right balance between taking women who make allegations of sexual abuse seriously, recognizing the structural barriers complainants face, and upholding the accused’s legal presumption of innocence.

As Chief Justice McCallum said this week: “The irony of all this is that the important debate over whether there are flaws in the way courts can deliver justice in sexual assault cases to complainants and defendants alike is increasing developed a form of discussion that is, at this point in time, the single biggest obstacle to achieving just that.”

Now to our stories of the week:


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