Trial By Internet

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How does the criminal justice system cope with the information revolution of the Internet?

In the first week of February 2008 the big boys at Channel 9 were virtually leaping out of their skin with excitement. The network’s highly-anticipated “true-crime” drama series Underbelly, based on the sensational underworld war that saw 36 criminal identities slaughtered on the streets of Melbourne between January 1998 and August 2010, was about to hit the small screen, and predictions were it was going to go gang-busters. The viewing public was beside itself with frenzied anticipation, and Nine’s executives were boldly predicting a spectacular resurrection from the ashes of the network’s recent ratings slump.

Photo: John Schnobrich

Source: Unsplash

But the day before the first episode of the scheduled 13-part series went to air, Underbelly hit a hurdle in the shape of Justice Betty June King QC, a tough, savvy and formidable judge of the Supreme Court of Victoria.

Betty King had been given the job to preside over the murder trial of criminal king-pin Carl Williams, and she was determined to see he got a fair trial on her watch. So when senior Crown prosecutor Geoffrey Horgan, SC, expressed concerns the series could adversely affect William’s right to a fair trial, and possibly prejudice a pending committal hearing into the 2002 shooting of gangster Victor Peirce as well as future court appearances by the then-fugitive accused gangland killer Tony Mokbel, her Honour wholeheartedly agreed.

Naturally, Nine was deeply horrified, and its barrister Brendan Murphy QC vigorously opposed the suppression application. But all to no avail. On the day before the much-awaited world premiere of the landmark television series Justice Betty King, who would later facetiously refer to herself as “the queen of banning things”, flatly prohibited Channel Nine from broadcasting Underbelly anywhere in the state of Victoria or on the internet. She felt it was the least that she could do.

Unfortunately, as it turned out, it wasn’t nearly enough. Within 20 minutes of Underbelly premiering in every Australian state except Victoria, the entire first episode was available for download on the internet everywhere, including Victoria. As each subsequent episode aired it was duly posted on the net for all to see, anywhere where anyone could get online.

Some years later, I represented a man charged with a string of offences that saw him face four separate jury trials. He claimed he was not guilty of anything, and in each of his first three trials, the jury agreed, acquitting him and eventually leaving him with only one last trial to face.

But at the conclusion of the third trial, after the judge dismissed the jury with the thanks of the community for having so conscientiously discharged their solemn duty, a relative of one of the complainants accosted several of the jurors as they filed out of court, challenging their verdict, and insisting they had got it wrong. We the defence lawyers were suitably outraged, and urged the trial judge to cite the mischief maker for contempt. Her Honour was similarly outraged, but not enough to charge contempt. Instead, she summoned the offender before her, gave her a good stern talking-to, and forbade her to have any further contact with the jurors, or to be in attendance at the fourth trial.

The weakest case against my client was the one prosecuted in his fourth trial. So we were all surprised when the jury in that trial returned a guilty verdict. Several days later we discovered that following the third trial someone registered a website that recited a litany of lurid, unsupported allegations about our client, declaring him a guilty man, and inviting readers to attend his trial to call for his conviction. Anyone who typed his name into Google was led straight to the site.

Naturally, the convicted client appealed, seeking a retrial due to unfair prejudicial pre-trial publicity. But the appeal court noted the jury had been instructed by the trial judge to ignore anything they heard about the case outside the courtroom, so naturally they would have obeyed. The appeal was refused, the conviction confirmed, and the defendant left to serve his sentence.

Like so many 21st century institutions, the criminal justice system is struggling to cope with the information revolution of the Internet. As recently as late last year the Brisbane Supreme Court murder trial of Gable Tostee was almost derailed when it was discovered one of the jurors had ignored the trial judge’s direction and shared her jury experience with her 2000-plus followers on social media.

It was just the latest high-profile example of the insidious problem that has had lawyers and legal academics wringing their hands for the best part of a decade.  Naturally, like lawyers everywhere, the Queensland Attorney General Yvette D’Ath too was suitably outraged, and has pledged to search for a solution to the pervasive effect of the Internet in the 21st century.

Good luck with that.

Chris Nyst

Gold Coast Lawyer, Film Maker and Novelist

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