TOP STORIES Keeping the jurors impartial means keeping everyone else quiet?

Keeping the jurors impartial means keeping everyone else quiet?


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When Brittany Higgins, a former government official, came forward with her accusations of rape, which she said took place in the Australian Parliament House, the whole country was shocked. Her claim that she was attacked by a colleague in the Secretary of Defense’s office as she slept after a night of drinking sparked protests across Australia from women demanding change in the male-dominated political culture.

But this week, journalists and the general public in Australia received a stern reminder to be extremely careful about how they report and speak about the case.

Last year, a well-known television journalist received an award for her interview with Ms. Higgins and, in her acceptance speech, praised Ms. Higgins for her courage. This prompted the judge in the case to postpone the trial, which was about to begin. The journalist’s remarks, according to the judge, could influence the jury as they imply that Ms. Higgins was telling the truth.

The postponement raised questions about whether Australia’s contempt of the judiciary strikes the right balance between free speech and the right to a fair trial. We have previously written about a rise in court orders in parts of Australia banning coverage of sensitive cases and what some legal experts describe as a lack of faith in jurors’ ability to distinguish between what they read in the media and what they are being told. . hear in the courtroom. Australian courts even sometimes require deleting books written about the case or the accused before the start of the trial, temporarily censoring relevant information for everyone so that it does not fall into the hands of only a handful of jurors.

Some Americans, accustomed to heavily televised trials where little is barred from reporters and where plaintiffs, defendants and lawyers are regularly interviewed during trial, may think that Australian courts are going too far in regulating pre-trial information.

But in Australia, there seems to be more concern about how the case is played out in the media.

The judge in the case, Chief Justice Lucy McCallum, said she had “wrongly justified” her trust in the media for responsible coverage of the case and brushed up on contempt of court law a bit.

“I’m not sure until this week that it was understood that subjudicial review means that the allegation that has been made remains untested under the law,” she said, “so any comments about the creator of the accusation, the circumstances in what she did, her credibility, the number of times she said it, and the expressions in which she said it, are all matters for the court to consider.”

Even discussing culture in the workplace, she says, “should dance a subtle dance.” “If the issue is the interpretation of the accusation, it’s very difficult to have this debate without commenting on the mishandling of the alleged premise that the accusation is true.”

Johan Lidberg, an associate professor of journalism at Monash University, said dealing with these kinds of cases highlights the differences between the United States and Australia.

Americans, as American courts generally believe, can make decisions without bias, even if the coverage of a case may lead them to maintain innocence or guilt. Suppression of First Amendment rights to jury protection is generally not allowed.

“There seems to be much less risk in the US of jurors being influenced by reporting simply because it has always been that way,” he said. “While there is a tradition in Australia of trying to keep the jury from being influenced by anything other than what was said in court.”

For Australia, the problem is that traditions are becoming increasingly difficult to maintain in the internet age, given the unlimited number of opinions on social media that can suggest guilt or innocence and are often posted by people who don’t have the same knowledge of the law. what legacy media are doing, he said.

The reckoning we’ve seen around the world in the last few years regarding the treatment of women has also changed how the media reports sexual assault allegations, Prof Lidberg said, sparking a conflict between “hearing women and the names of alleged perpetrators and the presumption of guilt.” “. innocence”.

“In the past, especially in cases of sexual assault, you were very reluctant to give the names of the parties involved,” he said, adding that it would be good journalistic practice not to give names in reports in order to preserve the presumption of innocence and not prejudice potential jurors. “#MeToo changed everything.”

This creates new challenges in finding the right balance between taking women who bring allegations of sexual violence seriously and recognizing the structural barriers complainants face and respecting the legal presumption of innocence of the accused.

As Chief Justice McCallum said this week: “The irony in all of this is that the important debate about whether there are flaws in how courts can deliver justice in cases of sexual harassment to both plaintiffs and defendants, have evolved into a form of discussion that, at this point in time, is the single biggest obstacle to achieving just that.”

And now our stories of the week:

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