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Are Media Gag Orders Fair in an Internet World?

Editor Michael Cook says no, based on the Pell sex abuse case Down Under. New ways must be found to ensure that a jury is not prejudiced

This article by editor Michael Cook tackles the problem of media gag orders in an internet world. Australian media outlets were recently fined A$1.1 million for contempt of court for publishing information that was widely available elsewhere concerning the trial of George, Cardinal Pell on charges of sexual molestation. Significantly, they could not publish information that cast doubt on the fairness of the trial, that they were in a better position to understand than foreign media would be. Cook suggests new approaches going forward. The article first appeared at MercatorNet on June 9, 2021 under the title “They’re still picking up the pieces after the Cardinal Pell fiasco.”

A media pygmy, MercatorNet spends much of its time complaining about the mainstream media – its inconsistency, its lack of principles, its superficiality. Being closer to the ground than the giants, perhaps we see more clearly the damage they do.

Michael Cook

But for once they deserve some sympathy. They let in a ray of sunlight on the darkness of injustice surrounding Cardinal George Pell — and got thrashed for it.

Last week some of Australia’s best-known newspapers, radio stations and website were fined a total of more than A$1.1 million for contempt of court over their reporting of the trial of Cardinal Pell.

This requires some unpacking. Bear with me.

Before the trial began, Chief Judge Peter Kidd issued a “suppression order”. This is not unusual in the United Kingdom and Australia, especially in the state of Victoria, where the trial took place. Nothing was to be reported, nothing – no details of the charges, not the testimony, not the verdict – until the Cardinal’s case was done and dusted.

This required superhuman restraint on the part of the media. As it happened, the Cardinal was found guilty of five charges of historic sexual abuse at 3.44pm on December 11, 2018. This was the biggest news, not just of the day, but of the year, at least in Australia. And nothing could be reported.

The suppression order was not without merit. Cardinal Pell faced a second trial over similar allegations dating back to the 1970s. It was scheduled to begin on March 11 and Chief Judge Kidd believed that knowledge of the verdict could prejudice those jurors. As it happened, those charges were withdrawn on February 26, 11 weeks after the verdict. The suppression order was revoked immediately.

But back in December, the Australian media was bursting to reveal the sensational news. Overseas, The Daily Beast, The Washington Post, Fox News, National Catholic Reporter and many others reported it within hours. The news was circulating on social media around the world. But Down Under, journalists were supposed to pretend that nothing had happened.

The suppression order was intimidating – and not just in Australia. I myself sent an article to a British publication after the news of the guilty verdict leaked out. Its editor told me: “We’re keen to run this — we’re just going to get some legal advice.” And the legal advice was: too risky.

But for the giants, keeping shtum was beyond the powers of human endurance. The Daily Telegraph, one of the biggest papers, handled it this way: “‘a high-profile Australian with a worldwide reputation’ had been ‘convicted’ of an ‘awful crime’ and was ‘GUILTY’”. The Herald-Sun, Melbourne’s biggest paper, ran a black page emblazoned with the word “censored”.

Chief Judge Kidd was not impressed. Stern letters were sent out. Jourmalists were threatened with jail and fines.

In the end, everyone pleaded guilty and Justice John Dixon handed out fines.

The Age was told to cough up $450,000; news.com.au, $400,000; Fairfax Media, $162,000; Radio 2GB, $10,000; and even Mamamia, a website for mums, $20,000. Plus costs!

“The reporting of News Life Media, the publisher of news.com.au, and The Age Company, publisher of The Age, in particular constituted a blatant and wilful defiance of the court’s authority,” Justice Dixon said. In unusually scathing language for an honoured and learned gentleman of the bench, he described many of the offences as “a contumacious breach of the suppression order”.

There are two issues here.

The first, and the most obvious, is freedom of the press. For Chief Judge Kidd, it was a question of balancing the public’s right to know against justice for the accused, Cardinal Pell. Blanket media coverage of the trial plus a storm on social media might easily have poisoned the minds of potential jurors against him.

But this ignores the realities of today’s information network. Once a secret is out, it spreads around the globe like wildfire through Twitter, Facebook and other social media. The government is powerless to stop it. Other ways have to be found for ensuring that a jury approaches a notorious case with an open mind. Perhaps cases such as this should be entrusted to a judge or judges – although this option is not available in Victoria.

But the second, and more subtle, issue is whether a suppression order is consistent with a fair trial. In the 15th, 16th and 17th centuries, England had “star chamber” courts whose proceedings were secret, strict, arbitrary and unappealable. They were an insufferable burden on human rights. Nowadays, an open and public trial is regarded as a fundamental right in democracies. Suppression orders are regarded as necessary evils. Still, Victorian judges find it necessary to issue more than 400 of them in an average year.

How does a closed court deny justice?

In the spirit of the adage “justice must not simply be done, but be seen to be done”, the public should be able to attend the trial, the evidence and judgements should be public, and fair and truthful reporting should be permitted. Because of the suppression order, Cardinal Pell was not afforded these basic rights.

Yes, an open trial would have invited a blizzard of scurrilous commentary. But as a judge in Britain’s House of Lords stated in 1913:

The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.

This topic is very much alive. Today the Law Council of Australia called for reform of laws governing national security after an investigation into the case of “Alan Johns”, an unnamed former military intelligence officer who was secretly convicted and jailed in 2018 for leaking official secrets. “Open justice is one of the primary attributes of a fair trial,” said the Law Council president, Jacoba Brasch QC. “It is a fundamental rule of the common law that the administration of justice take place in an open court, except in the most exceptional of circumstances.”

More to the point in Cardinal Pell’s case, an open court is the steadying arm of justice on the judge. As Judge Frank Vincent observed in a 2013 review of open courts in Victoria, legal authorities have recognised that publicity “would serve as a check on the arbitrary exercise of power by judges, who could be expected to act in a competent, fair and impartial manner if their decisions were subject to public scrutiny and criticism”.

As the famous 19th century legal philosopher Jeremy Bentham put it:

“Publicity is the very soul of justice, it is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.”

And this is where the trial convicting Cardinal Pell went off the rails. Until he was sentenced, the public had little or no idea of the evidence used against him. The High Court, when it quashed his conviction, pointed out that many witnesses were never interviewed, let alone called, that some of the evidence was shaky, and some testimony went unchallenged.

Would the presiding judge have directed the proceedings differently if his conduct of the trial had been open to public questioning? Possibly. It would have been apparent that all the relevant evidence had not been presented.

In particular, cross-examination of the complainant, who remained – and remains – anonymous, might have been conducted in a tougher-minded, more forensic fashion. The prosecution built its whole case on his credibility. In a truly open trial, even if his identity had been concealed, the flimsiness of his allegations would have become apparent. It would have been possible to question his mental health and his criminal record.

The pain and shame of his prosecution, trial, conviction, and imprisonment are not completely behind Cardinal Pell, at least in the state of Victoria. He was treated very shabbily by the judiciary. Chief Judge Kidd, for instance, suppressed all reporting of the trial and then broadcast the sentence on the internet to a world audience, complete with salacious details harvested from the complainant’s fevered imagination. How did that advance the cause of justice?

And in the latest chapter of this dismal saga, the conviction of those media giants, Justice Dixon consistently referred to Cardinal Pell simply as “Pell”. Even when analysing actions of those egregious and contumacious editors, the learned and honourable judge did them the courtesy of referring to them as “Mr” and “Ms”.

The Cardinal has been found innocent and rehabilitated. He deserves to be treated with respect. Will that ever happen in Victoria? Not bloody likely.

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Are Media Gag Orders Fair in an Internet World?