[This article was originally published in The News Manual in August 2008.]
A decision by an Australian court that an accused paedophile must be set free because he cannot get a fair trial sends yet another clear warning about the limits of campaigning journalism in free democracies.
The accused man, Dennis Raymond Ferguson is, according to many people in Queensland and in that state’s media, the kind of man who should never be allowed into the community – and certainly not near children.
For obvious legal reasons, this column cannot go into the exact details of Ferguson’s past history because there is a possibility of an appeal court overturning Justice Hugh Botting’s decision to halt a current legal case against him and release him back into the community. [See footnote below] The judge also felt the case against Ferguson was weak. If the appeal succeeds and Ferguson’s trial goes ahead, publication of any information about his background – such as any previous convictions – could be contempt of court.
But many journalists in Queensland have shown no such restraint. Many of them have joined in what a local magistrate called a ‘feeding frenzy’ against Ferguson. Such was the fury among some residents of the town into which Ferguson was first released that he was forced to flee and seek somewhere else to hide. Australia’s national broadcaster the ABC described the atmosphere in south-east Queensland as ‘on the brink of hysteria’. This reached a peak when the Gold Coast Bulletin ran a front page story urging its readers to ‘Dob in a monster’. It even gave the paper’s telephone number for people to report sightings of Ferguson.
The editor of another Queensland paper was quoted as saying people had a right to know about Ferguson, despite the pending trial.
‘It is in the public’s interest to know more about the details of what was going on in terms of protecting future victims of this alleged perpetrator,’ he said.
That may be so, but the media are also required not to interfere with the application of justice. When there is a clash between the media’s job of informing people versus the court’s duty to administer justice, the law will take precedence.
Legal systems based on common law depend on the basic principles that any accused person is entitled to a fair trial and that they must be presumed to be innocent until a court decides otherwise. If a person cannot get a fair trial then they cannot be tried – and must be set free.
Thus the protestors and the media in the Ferguson case may have achieved exactly the opposite of what they set out to achieve.
There is an added danger – that if courts think the media cannot be trusted not to interfere with the right to a fair trial then judges and magistrates will impose their own restraints on journalists.
The use of suppression orders is already an increasingly common trend in Australia but it was highlighted at the end of the week of ‘hysteria’ over the Ferguson case when a magistrate in Queensland issued an order suppressing the name of a man accused of unrelated child pornography offences.
Magistrate Bernadette Callaghan said the media must take some responsibility for her decision.
‘I am concerned that in the media of recent days there has been a feeding frenzy,’ she said when imposing the suppression order.
Finally, it is no defence for journalists to argue that they are only reflecting community concerns. In the Ferguson case several politicians, including the Australian Prime Minister Kevin Rudd, were quoted in the media joining the witch hunt against Ferguson, despite his pending trial.
Just because politicians act foolishly is no reason for journalists to.
[This article was originally published in The News Manual in August 2008.]
Footnote: Later in August 2008, the Queensland Court of Appeal overturned Justice Botting’s ruling and Ferguson was ordered to stand trial. Then, in a rare move, a judge decided that, because of the publicity, no independent jury could be empanelled so Ferguson was tried by a judge alone. He was found not guilty of molestation. On 30 December 2012, Ferguson, a diabetic, was found dead in his flat in inner-Sydney. He had been dead for several days.
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You can watch the ABC Media Watch report at:
http://www.abc.net.au/mediawatch/transcripts/s2303501.htm
For more on some of the issues behind this story, you can look in the following chapters of The News Manual:
Chapter 63: Introduction to the law
Chapter 64: The rules of court reporting
Chapter 68: Contempt
Journalists working in Australia can find some more specific references in the Additional Resources chapter Contempt & court reporting in Australia.
