Media

Prosecuting journalists over George Pell reporting could do massive damage to media freedom | Andrew Dodd | Opinion


The major news to emerge from Victoria’s supreme court on Tuesday was that the state’s director of public prosecutions is still pursuing criminal charges – and potential jail terms – for journalists who dared to cover the conviction of George Pell after he was found guilty in the Victorian county court of child sexual offences.

If you thought the case had gone away after Pell’s acquittal in the high court, think again. The DPP is still pursuing charges against 30 reporters, editors and organisations for allegedly breaching a court-imposed suppression order designed to prevent them reporting on the case.

As the various parties argue in pre-trial negotiations, it’s slowly dawning that the court intends to follow through on its threats to prosecute the journalists, despite the massive damage the case could do to media freedom and the public’s right to know.

It’s not a simple issue because the suppression order imposed by county court chief judge, Peter Kidd, in June 2018 was intended to ensure that the cardinal got a fair trial. Pell was facing two charges and the court decided to hear them separately, meaning that news of the first trial was suppressed so that the jury in the second trial would not be tainted by the outcome of the first.

The ban was only lifted when the second trial was abandoned due to a lack of admissible evidence.

As suppression orders go it was especially tough and severely limited public discussion. But its inherent weakness was quickly revealed when Pell was found guilty of assaulting two choir boys on 11 December 2018. Dozens of international media outlets picked up on the news immediately, as you would expect, given that Pell was one of the most powerful clerics in the Vatican and the highest-ranked Catholic to be convicted of sexual offences. Soon it was everywhere on social media too. It seemed that for a few days that the only people who weren’t openly discussing the case were journalists in the Australian mainstream media.

Instead, a small number of our media outlets were reduced to talking about it obliquely in strange de-identifying articles and complaining about how they couldn’t report on a case that everyone else was talking about.

The Herald Sun, for example, ran the stark headline “CENSORED” across a blacked-out front page and told its readers that it couldn’t tell them what the rest of the world was talking about. Various media outlets reported there had been a guilty verdict in a trial, without naming Pell.

The prosecution has argued the reporting constituted a real and substantial risk of prejudice to the proper administration of justice and many of the stories had a serious tendency to prejudice a fair trial.

Kidd had been specific that not only were media outlets not allowed to name Pell, there were to be no details that could identify him or information about the number of trials or charges he was facing.

The disparity in media coverage perfectly illustrated the limits of suppression orders today because the courts have failed to keep pace with new forms of communication. The whole sorry saga made the case for reform of an archaic system.

But instead of admitting the shortcomings of suppression orders, the county court opted to punish those media outlets that dared to talk about the issue, even though none of the people who were subsequently charged named Pell in their coverage.

In a closed session of the court, Kidd said “a number of very important people in the media are facing, if found guilty, the prospect of imprisonment and indeed substantial imprisonment”. The transcript of that hearing was also widely circulated on social media. It read like the frustrations of an institution struggling to accept that digital disruption had undermined its authority. The court seemed precious and brittle in the face of criticism.

The director of public prosecutions, Kerri Judd QC, attended that hearing and followed through in February 2019 by sending letters to nearly 100 editors, journalists, publishers, broadcasters and others, asking them to show cause why they shouldn’t be charged with contempt of court.

The DPP was applying a big stick and sending a warning, but surely that’s all it would end up being? I remember saying at the time, “It’s a bluff. No one would be seriously contemplating punishing, let alone imprisoning, journalists for telling the truth and saying what everyone already knew.”

It was outrageous that the threat was ever made. It is simply astounding that it continues, especially as there is considerable appetite for reform. The Victorian Law Reform Commission last year investigated ways to retain the good intent of the system and make it more workable in the new media landscape.

The former supreme court judge Frank Vincent conducted a comprehensive review of suppression orders in 2017, which called out Victoria for being the suppression capital of the country.

Perhaps the most offensive thing though about this case is that it shows a lack of respect for the intelligence of juries. Suppression orders are meant to protect juries, along with witnesses, from being tainted by information that could be prejudicial.

But it’s time the courts accepted that juries are now more media-savvy. They don’t need to be encased in soundproof booths, just as the media doesn’t need to be punished for trying to do its job of reporting information that’s in the public interest.



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