Juries (Prejudicial Publicity) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 March 2015.)

The Hon. J.A. DARLEY (16:45): I rise very briefly to speak on the Juries (Prejudicial Publicity) Amendment Bill and to indicate at the outset that I am not supportive of the government's proposed changes. The bill proposes to amend section 7 of the Juries Act in a way that would enable a court to order that a case be heard by a judge alone if it is considered necessary in order to ensure a fair trial in instances involving an application by an accused for a stay of proceedings on the basis that publicity has prevented them, or may prevent them, from receiving a fair trial.

In effect, it would prevent the accused from exercising their right to be tried by judge and jury and, as alluded to, the sole criterion for the making of the order would be that the court considers it necessary in order to ensure a fair trial. As the Law Society of South Australia and the Hon. Andrew McLachlan have pointed out, the right to a trial by jury has for centuries been the cornerstone of our criminal justice system. For people charged with commonwealth indictable offences, it is an inalienable right guaranteed by the Constitution.

The Law Society remains unconvinced on the need for this amendment, especially given that the High Court has lifted the bar so high for accused persons applying for a permanent stay based on prejudicial pre-trial publicity that it is unlikely an application will ever succeed. In addition, directions to the jury are well known to be utilised to avoid potential miscarriages of justice. We all know that juries play an integral role in our criminal justice system. They provide the opportunity for accused persons to be tried by their peers. A former ACT justice, Xavier Connor QC, has listed some of the features of a right to trial by jury as follows:

The 12 jurors chosen at random are likely to represent community views and values in a way that a single judge does not.

Trial by jury is democratic in that the community participates in a vital way before people accused of serious crime can be convicted.

Juries, because they do not give reasons for their decisions, can bring the conscience of the community to bear on issues in a trial in a way that a judge cannot.

Community participation in the administration of criminal justice, by way of jury service, promotes an understanding of the system and confidence in it in a way that no other system does.

Trial by jury is and is seen to be a system better adapted than any other to preserving the liberty of the subject against oppression by the state.

The government has pointed out that this is not the first time that we have made changes to the Juries Act. However, as the Law Society highlights in its submission, it is also important to note that this amendment is very different from the changes made by this parliament in 2012, which permitted the DPP to apply for a trial by judge alone in serious and organised crime cases because, in that instance, there was a real possibility that the conduct of the accused could have compromised the impartiality of the jury. That is not the case before us now.

There is no question that the advancement of technology, and social media in particular, has resulted in a much more expansive spread of publicity, and media outlets themselves have taken to those advancements like ducks to water. I agree also that the public's demand to know and the media's determination to sensationalise is ever-present. Indeed, sometimes it feels impossible to find a place to turn without hearing about a given matter that is in the public spotlight.

The fact still remains, however, that despite these advancements in technology and despite our apparent insatiable need to know, the sort of changes we are talking about here have not proved necessary. I think it would take a great deal of convincing to overturn a principle that is so fundamentally enshrined in our criminal justice system based merely on speculation, especially given the importance of that principle and the fact that the bar has been lifted so high when it comes to permanent stays based on prejudicial publicity.

The cynic in me would also question whether or not this bill is part of a package of reforms we are seeing introduced into this place which appear to be based more on budget-driven measures than merit. It is most definitely not one of those bills that the government has urged that we consider favourably on pressing grounds. On that reasoning I indicate that I will not be supporting the bill.

The Hon. T.T. NGO (16:51): I rise to offer my support for this bill and to address its substance. In today's age of social media, trials are frequently commented on beyond the realm of mainstream media. A trial or an accused can quickly become the subject of a Facebook page, Twitter hashtag or general commentary on social media. There are many examples of this here, interstate and overseas. The recent Jill Meagher murder case in Victoria is a prime example of how fast and widespread social media commentary on a case can be.

The Age newspaper reported that a Facebook page called 'Publicly hang Adrian Bayley' had more than 40,000 likes, and numerous other pages commented on this case before it went to trial. At least the media is subject to ethical standards; Facebook and Twitter users are not subject to these ethical standards. The media generally feels constrained by court orders whereas general users of social media do not feel constrained. The media is well aware of the consequences of not following suppression orders or being found in contempt of court. Generally, users of social media are unlikely to be aware of suppression orders that are in place. They are also unlikely to know the consequences of breaching suppression orders or being found in contempt of court.

Although ignorance is no excuse for breaking the law, this lack of awareness means that general social media users do not feel constrained by suppression orders or the risk of being found in contempt of court. In turn, general users are less likely to be deterred from posting prejudicial statements or disobeying suppression orders. A key example of this was a 2010 suppression order made by Magistrate Harrap to prevent the name, photo and address of Jason Downie, who later admitted to murdering Chantelle Rowe and her parents, from being published. His name and image were posted several times in connection with the murders on social media, after the suppression order was made.

Further, some social media posters do so anonymously, making it difficult to attribute posts to the individuals responsible. This anonymity makes it difficult for the police. It also means that individuals feel less constrained in what they post on social media.

This bill does not detract from suppression orders and other orders of the court. These are still available as such. I do not believe that it will lead to the media disobeying these orders en masse, as per the Law Society's submission. It does, however, acknowledge the difficulty in enforcing suppression orders against individuals who have created Facebook pages or twittered in breach of the suppression order.

This bill aims to ensure that an accused receives a fair trial where publicity regarding their case would otherwise make this impossible. There have been various calls that this bill abolishes the right to a trial by jury. This is not the case. Currently, if an accused successfully applies for a permanent stay of proceedings on the basis that publicity has or will make a fair trial impossible, the case is not heard at all. Under this bill, where such an application is made and the judge determines that a trial by judge alone is necessary to ensure a fair trial, the accused will be tried by judge alone.

This bill fills the gap for trials that would otherwise be stayed on the basis of prejudicial publicity. It creates a means for a judge to ensure that the accused receives a fair trial by ordering a judge alone trial. It is important to stress that this legislation would only be enlivened where the accused has applied for a stay of proceedings on the basis of prejudicial publicity. It is expected that the provision would only be used in rare circumstances where jury directions would be insufficient to correct the effects of prejudicial publicity on a jury.

Again, this does not deny the accused the right to a trial by jury as it only arises when the accused makes an application on the basis that they could not receive a fair trial as the impartiality of the jury has been affected by the prejudicial publicity. I commend the bill to the council.

Debate adjourned on motion of Hon. G.A. Kandelaars.