A young journalist was recently convicted of sub judice contempt
of court and given a good behaviour bond, and her employer fined
$300,000 for the extra information she added to her story about a
man facing court for murder. (See DPP
v Johnson & Yahoo!7 (No 2)  VSC 45.)
The man was facing trial in Melbourne for the murder of his
partner, but when the journalist wrote her online story about the
case for Yahoo!7, she added material on the man that she had
gleaned from his social media accounts and that had not been
mentioned in court.
Four days after the journalist posted her unedited story online,
the defence protested that it prejudiced the trial. The judge
declared a mistrial, as a juror may have read the story and it
could have potentially influenced their evaluation of the
Jurors only meant to know what they hear in the courtroom
The young journalist broke the golden rule not to report
anything said in the absence of the jury. She wasn't the first.
In 2013 broadcaster Derryn Hinch was found guilty of breaching a
court suppression order when he revealed the criminal history of a
man accused of committing murder while he was on parole.
Hinch was also jailed in 1987 for revealing the prior
convictions of a paedophile priest. Hinch had considerable public
support for his action and is now a senator.
However, the law is very strict on this. The jury is not
supposed to know anything beyond what the jurors hear in the
courtroom. They should not read media reports on the case, and
certainly they should not play detective and conduct their own
investigations or research. In reaching their verdict, the jury is
supposed to consider only the evidence they hear in court.
If an Australian judge heard that a juror had done something
similar to what Henry Fonda did in the 1957 movie Twelve Angry Men
when he dug up his own evidence, Fonda would be the one locked
Should a jury be able to learn more about the accused?
But the laws might change if reforms suggested by the Royal
Commission into Institutional Responses to Child Sexual Abuse are
adopted. The Commission's proposed reforms would allow more
details about an accused person's past – known in law as
"tendency and coincidence evidence" – to be put
before a jury. (See
Evidence (Tendency and Coincidence) Model Provisions,
public consultation draft.)
After its long and torrid investigation, the Commission felt
that a jury should be able to know more about a person accused of
child sexual abuse and be able to hear from previous victims, so
that a child abuse case does not come down to just one person's
word against another's.
Would changing rules of evidence increase risk of innocent
people being convicted?
However, relaxing the rules of admissible evidence could lead to
an increase in wrongful convictions. The Commission's proposed
law changes would apply nationally to all crimes, not only those
involving child sexual abuse.
The jury might conclude that if a defendant has been convicted
earlier of a similar crime, he probably committed this crime as
well. It has the potential for increasing the likelihood of
innocent people going to jail.
Are we underestimating the jury's ability to assess
But is it time to ask whether the legal system is
underestimating the ability of jurors – twelve citizens
chosen at random – to weigh the evidence presented in court?
Is it detrimental to the defendant for the jury to be told of their
previous criminal convictions? Is it detrimental to the victim for
the jury not to know about the accused's criminal past?
It is a question that perhaps should be asked, particularly in
cases of child sexual abuse or sex crimes, where there is a high
incidence of repeat offending.
These cases provide some guidance as to how the courts have approached the assessment of damages in nervous shock claims.
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