Prejudicial Publicity - Possible Remedies
- Challenge for cause (s 43 & 47 Jury Act) and juror’s obligations (R v Ferguson; ex parte A-G (Qld) [2008] QCA 227; R v Patel (No 4) [2013] QSC 62)
- Judges’ directions to juries (R v Long; ex parte A-G (Qld) [2003] QCA 77; Dupas v The Queen (2010) 241 CLR 237)
- Delay/adjourn proceedings/temporary stay
•see Sheikh [2004] NSWCCA 38, where a conviction was quashed because failure to adjourn proceedings undermined the accused’s right to a fair trial and may have caused a miscarriage of justice
- Transfer location (s559 Criminal Code)
- Judge alone trial (s 615(4)(c))
- Permanent stay as last resort
•see acquittal on appeal in Tuckiar, discussed in Glennon (1992) 173 CLR 592
- Judges’ directions to juries (R v Long; ex parte A-G (Qld) [2003] QCA 77; Dupas v The Queen (2010) 241 CLR 237)
- Delay/adjourn proceedings/temporary stay
•see Sheikh [2004] NSWCCA 38, where a conviction was quashed because failure to adjourn proceedings undermined the accused’s right to a fair trial and may have caused a miscarriage of justice
- Transfer location (s559 Criminal Code)
- Judge alone trial (s 615(4)(c))
- Permanent stay as last resort
•see acquittal on appeal in Tuckiar, discussed in Glennon (1992) 173 CLR 592
Determining unfairness due to pre-trial publicity
1. The nature (is the publicity prejudicial) and quanitity of the publicity.
2. The extent to which it may be seen by jurors as relevant to the trial.
3. How long ago was the publicity - is it still available (eg. through the internet)?
4. In what medium was the publicity and where did it occur?
5. The extent to which evidence that will be given at trial is to like effect as the publicity.
6. Was/will the trial evidence be detailed and absorbing?
7. What is/will be the impact of other remedies used/to be used (such as judicial directions, change of venue, trial by judge alone) in countering potential prejudice.
For further discussion of remedies for prejudicial publicity and the specific problems raised by new technologies see: Elizabeth Greene and Jodie O'Leary. "Ensuring a fair trial for an accused in a digital era: Lessons for Australia" The courts and the media: Challenges in the era of digital and social media (1st ed). Ed. P. Keyzer, J. Johnston & M. Pearson. Braddon, ACT: Halstead Press, 2012. 101-119.
Specifically regarding the prejudicial pre-trial publicity surrounding Dennis Ferguson's case see: Jodie O'Leary. "Understanding the Dennis Ferguson debate- Part 1" The National Legal Eagle 14.2 (2008) and Jodie O'Leary. "Understanding the Dennis Ferguson debate: Part 2" The National Legal Eagle 15.2 (2009).
Specifically regarding the prejudicial pre-trial publicity surrounding Dennis Ferguson's case see: Jodie O'Leary. "Understanding the Dennis Ferguson debate- Part 1" The National Legal Eagle 14.2 (2008) and Jodie O'Leary. "Understanding the Dennis Ferguson debate: Part 2" The National Legal Eagle 15.2 (2009).