Sifting Through The Dross

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The Roman Catholic Cardinal George Pell has retained a brilliant USSR-born, Jewish lawyer to defend him.  Melbourne-based barrister Robert Richter QC has been retained to defend the Cardinal on historical sex charges. Having worked often with Robert, I can tell you the Cardinal has an excellent man in his corner. But nonetheless, many experienced lawyers are privately wondering if he can possibly get a fair trial.

Photo by Ilya Yakover

In chaotic scenes outside the court earlier this week, Cardinal Pell was flanked by a dozen police who struggled to keep crowds and media at bay, as some onlookers hurled abuse and others held signs of support for the beleagured Cardinal. During the brief court appearance Magistrate Duncan Reynolds took the unusual measure of reading from a prepared statement because of the extraordinarily high level of public interest in the case, and the prosecutor Andrew Tinney SC, stressed the need for “fair and accurate reporting” by media covering the case.

But the truth is the unprecedented measures taken at the first mention of the charges against the Cardinal are an ominous reflection of the profound and growing concern many in the Criminal Justice system harbour concerning the pervasive prejudicial effects of media coverage of criminal proceedings in this country. For a decade or more our criminal courts have struggled with the unfiltered dissemination of often wildly-inaccurate and prejudicial information on the Internet, and thus far no solution has been achieved. Appeal courts have thrown their hands in the air, effectively giving up on the issue, hiding behind the proposition that juries will heed judicial warnings to ignore what they see, read and hear outside court. But in reality, lawyers are painfully conscious that a real and serious threat of injustice exists.

In criminal cases juries are routinely instructed to take account only of what they hear in the courtroom, ignoring untested and unverified opinion, rumour, gossip and scandal. But in a case such as the current prosecution of Cardinal Pell, to whom many awful and highly-emotive allegations, aired in a succession of Royal Commission hearings into child sexual abuse, have sometimes been linked on vague and tenuous grounds, whose responses were aired in live time on international TV, and whose guilt and innocence has been tried and adjudicated, it seems, by every self-proclaimed expert, blogger and chat host ever to tap on a keyboard, what hope can there be that some of the unsubstantiated dross won’t somehow seep through?

It is perhaps the 21st century’s most crucial challenge thus far faced by the criminal courts. The threat posed by potentially prejudicial pre-trial publicity, particularly on the Internet, has been the subject of extensive debate in a long series of symposia and seminars, but to date no satisfactory solution has been found. It is a profoundly complex problem, and there is no simple solution. But one must be found. Radical solutions, including restrictions, either partially or whole, on the reporting of pre-trial procedures, the censoring of Internet debate, perhaps trial under pseudonym, or at least greater facilitation of the right of challenge for cause, are all on the table.

Whatever the answer may be, the issue needs to be tackled head-on, and soon.

For further comment by Chris Nyst on this point please see here.

Chris Nyst

Lawyer, Novelist and Film Maker

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