As a reasonably litigious society, it is often too easy for the PNG media to eschew publishing about matters that don’t flatter their prejudices using the excuse of subjudice contempt as their morally pious shield, notwithstanding that PNG does not have trial by jury so the only person who can be influenced by publication is judges who are supposedly impervious. In the article below which I wrote for ABC The Drum, more than four year ago, I lamented that the charge is used by the unscrupulous to avoid scrutiny. Is the press in PNG also using it to promote and cover up their own particular bias? I have reproduced the article from 2011 below.
Radio announcer Derryn Hinch, known as the ‘human headline’, has just been convicted of four counts of contempt of court after breaching a suppression order by broadcasting the names of four sex offenders.
It’s not his first conviction, Hinch is a serial offender.
Sub-judice contempt laws specifically target the media, preventing it from publishing or broadcasting details of cases before the courts. The intention of the legislation is to ensure a fair trial for the accused although there is an exception if the broadcaster/publisher can prove that it is in ‘the public interest’.
Nevertheless, there are few media outlets that would be prepared to take on the vast resources of the Government arguing that one in court. Hinch tried and failed.
Yet, in its intention, this law is sound. No-one believes trial by media is fair play – all other things being equal. But, of course, they never are – are they?
In fact, our laws acknowledge the inequality between the prosecution and the accused in criminal cases and take steps to redress the imbalance. The administration of justice, the function of our legal system, needs to have altruistic intentions and generally it does. It’s why the statutes exhort the Commonwealth to be a ‘Model Litigant’ with the idea of fairness and the discovery of truth uppermost in its considerations.
Yet if the acts (laws) are altruistic, the actors are not always. Too often sub-judice contempt laws, designed to protect the weak (the defence) are hijacked by the powerful (the prosecution and its agencies), providing a brilliantly effective shield from public scrutiny where the unscrupulous can operate with relative impunity. Without public scrutiny the temptation to treat obligations under the law contemptuously, is ever-present.
Secrecy causes the worst abuses to occur – transparency and fair play can seem unnecessary when no-one can see you.
The Australian Federal Police (AFP) is a case in point.
Under former commissioner Mick Keelty the service expanded exponentially and became more clandestine – ostensibly in response to the ‘Age of Terror’. Since then the AFP has made names like Haneef and Habib household – and not in any good way.
Take the case of the Australian pilot Fred Martens who was a long-time resident of Papua New Guinea (PNG). He was convicted in 2004, under Australian child-sex tourism laws, of raping a 14-year-old girl in PNG and served two and a half years in jail.
Yet he didn’t do it. OK, sometimes mistakes can be made – not this time.
According to Martens not only did the investigating AFP officer find evidence that could have exonerated him but the agent uplifted the evidence then denied its existence. Well the officer would, wouldn’t she? How else was she going to win her case in the face of such a damning discovery?
Her actions were not only morally bankrupt but also contrary to the Queensland Criminal Code (section 590) that requires the prosecution give full and early disclosure of all things in its possession that would tend to help the case of the accused with the purpose of determining the truth. (Material in the hands of government agencies, such as the AFP, is deemed to be in possession of the prosecution.)
Winning is not the point. The AFP (and often the CDPP) has yet to get the point.
Because of the sub-judice contempt laws, Martens was solely reliant on the Australian justice system – he was unable to garner public opinion as leverage. As the Australian legal system has a reputation for the integrity of the judiciary and the transparency of its laws this shouldn’t have been problematical. Except the court acted on the assumption that officers of the court (the AFP and prosecution) were acting within the spirit and the letter of the law.
Ha! Now all that’s left is for the Australian taxpayer to foot the compensation bill.
No, Hinch is not alone in his contempt for the law but, to his credit, his actions at least show transparency and integrity. He’s challenging the law in full view rather than hiding behind it.
Susan Merrell is a Sydney-based freelance journalist with a PhD in political science