The conviction of Yahoo!7 journalist Krystal Johnson has concentrated minds on the risk of sub judice contempt, particularly when reporting on violence against women.
The nature of domestic violence means that often, we only know about it once the police and the law are involved, which means sub judice contempt and the rules of evidence greatly restrict what the public know about this pervasive crime, human rights and social issue.
It is well documented by media law experts, law reform commissions and journalists that sub judice contempt, designed to prevent trial by media and protect the administration of justice, is ill-defined and ambiguous leaving journalists uncertain about what can be published.
In keeping with Uncovered’s educative purpose, we’ve included a brief summary of the law and some links to more resources at the end of this article. But for now, let’s discuss the impact of this ambiguity.
Not only does ambiguity in the law encourage publishers to push the boundaries, but it can also cause the more wary to restrict their discussion of the broader context of violence against women.
For example, Uncovered is aware that some big media companies believe that sub judice means they cannot publish the details of support services for victims at the foot of court reports about domestic violence. They are probably wrong in this belief.
Despite a number of state and federal inquiries into contempt that date back to the 1980s, all of which recommended change, no action has been taken, leaving journalists grappling in the dark.
In particular, the reporting of violence against women is impeded – both by the rules of evidence, and by confusion over sub judice contempt.
This is the background to the Johnson case. For those in the know, it is no surprise that an inexperienced reporter fell afoul of the law.
Not only is the law a constraint on journalists but it could also be impacting the community’s awareness of and debate around violence against women.
University of Melbourne Law Professor Jenny Morgan and Violetta Politoff’s research on Victoria’s coverage of violence against women suggested that sub judice contempt may be one of the reasons behind the media’s tendency to exclude information about an accused’s prior violence and the broader context of violence against women.
Professor Morgan said if journalists covering domestic homicides are unable to report on social context or prior violence due to legal restrictions, it looks like the murder “came out of the blue.”
“In a situation where a man has killed his female partner, the most common form of intimate partner homicide, the perpetrator is likely to seem less blameworthy.
“It also makes it more difficult for the reader or viewer to understand that this is indeed a gendered phenomenon, rather than a random act,” she added.
The Yahoo!7 case
In August, Johnson wrote and published an article including information which prejudiced the trial of Mataoi Aleuia who was convicted yesterday for the brutal murder of his girlfriend Brittany Harvie in 2015.
This conviction means the media are now allowed to discuss the details of Johnson’s case which inevitably references the details of the murder trial.
The Age reported yesterday that the offending information included in the article was a Facebook comment made by Ms Harvie stating that she feared Aleluia might one day put her “six feet under.”
This information had been denied to the jury, a decision that would have been made based on the rules of evidence which govern what information can and cannot be put before the court.
The Australian reported that Johnson began work on a report of the Aleuia trial using sources including AAP but was called away to other breaking stories.
When she returned to the story she intended to include as much as possible, including the social media comments, all the while forgetting that the trial was still before the court.
Johnson noticed her editors were “particularly busy” and went ahead and published the article herself. This led to Aleuia’s trial being aborted and the jury discharged.
Justice John Dixon’s decision that Johnson and Yahoo!7 were guilty of contempt was influenced by the fact that Aleluia was standing trial for “the most serious offence known to the law” and the article described prior criminal conduct, information that is considered prejudicial to the accused.
Other factors taken into account were that Yahoo!7 is also a well-known national publication that does not require subscriptions, the article had been read 4123 times while online and there was a “large spike” in visits to the website the day it was uploaded.
It was also argued that jury members could have been exposed to the article if their friends or family had shared the information in conversation or on social media.
Justice Dixon will determine penalties early next year.
Johnson is not alone
Causing a trial to be aborted and the consequential impact on the victim, accused and their families should not be taken lightly and shows a significant lack of management and prudence from Yahoo!7.
But Johnson’s inexperience and lack of legal training is not unique with a number of young journalists reporting on the courts in place of their predecessors who may have had decades of experience.
The Centre for Advancing Journalism has been conducting a case study of court reporting in Victoria as part of its Civic Impact of Journalism project.
Research team leader Dr Margaret Simons said: “We have found that journalists covering courts are increasingly inexperienced and untrained. A lot of the informal training that used to be done by experienced court reporters isn’t happening anymore, because the old hands have left the profession.
“And the judges are aware of this. The result is more suppression orders, because judges don’t trust the young journalists they see in court to understand the importance of sub judice contempt.”
This extends beyond the court to other reporters who are dealing with criminal matters. For example, and close to home, sub judice contempt has become an issue for new Uncovered reporter Jane Gilmore.
Gilmore has been practising as a freelance journalist for some time, specialising as a commentator on violence against women. Yet she only recently learned that her past critiques of news stories about violence against women could be considered contemptuous.
When she shared her concerns with a Facebook group of journalists the responses ranged from “I’m not a court reporter so sub judice doesn’t apply to me” to, “Isn’t it the editor’s role to check for those sorts of issues?”
Gilmore said: “What struck me was, these are all really good writers, well respected people, who just didn’t think any of this stuff was relevant, didn’t know about it or thought somebody else would take care of it.”
When searching for explanations of the law, Gilmore said she only became more confused, “If you can’t explain sub judice contempt to somebody, then how do you expect journalists to abide by it?”
So what is sub judice contempt, and why should I care?
Sub judice contempt is a criminal charge prohibiting the publication of information, which might prejudice civil or criminal proceedings.
When reporting on crimes, as soon as legal processes have commenced, journalists are constrained to reporting the bare facts.
The test applied by the courts when considering whether a publication is prejudicial is whether it had: “a real or clear tendency, as a matter of practical reality, to interfere with the administration of justice.”
The Supreme Court of Victoria puts it simply in their Guide to Covering the Courts: “Remember the golden rule: do not report anything said in the absence of a jury.”
This statement and other available explainers, neatly package the essence of sub judice contempt, however it is not as simple as this “rule” or the above description makes it seem.
What about if the suspect is on the run? What if the case is only mentioned in the context of a broader story? What if another news organisation already reported the neighbour’s comments about the perpetrator?
And so it goes.
Justice Dixon used Johnson’s case as an opportunity to remind news outlets, bloggers, citizen journalists and social media users that you should not publish information which is not heard by the jury.
But in a media environment in which debate and conversation about topics such as violence against women is rich and complex, is the law really that simple?