Differential or deferential to media? The effect of prejudicial publicity on judge or jury
| DOI | 10.1177/1365712718765548 |
| Date | 01 April 2018 |
| Published date | 01 April 2018 |
| Author | David Caruso,John Eldridge,Rebecca McEwen |
| Subject Matter | Articles |
Article
Differential or deferential to
media? The effect of prejudicial
publicity on judge or jury
Rebecca McEwen
University of Sydney, Sydney, Australia
John Eldridge
University of Sydney, Sydney, Australia
David Caruso
University of Adelaide, Adelaide, Australia
Abstract
Australian jurisdictions have increasingly moved to facilitate trial by judge alone in cases which
are the subject of significant prejudicial publicity. These moves have been predicated upon the
assumption that the ordering of a trial by judge alone is an effective means of reducing the risk
of prejudice in cases of this kind. This article has two objects. First, it investigates the principles
underpinning the availability of trial by judge alone in cases of serious prejudicial publicity, and
the different legislative frameworks that have evolved in different Australian jurisdictions.
Second, it critiques these principles by analysis of a line of psycho-legal research which
examines the comparative abilities of judges and jurors to disregard prejudicial publicity. The
article interrogates the reformist assumption that a trial by judge alone will be fairer to an
accused who is the subject of significant prejudicial publicity.
Keywords
judge alone, jury, media, prejudice, trial
Introduction
Is trial by judge alone preferable to a jury trial in cases involving prolific prejudicial publicity? The
current legislative and judicial consensus appears to be a confident ‘yes’. An increasing number of
Australian jurisdictions have moved to facilitate trial by judge alone in cases which are the subject of
significant prejudicial publicity. These moves have been predicated upon the assumption that the
ordering of a trial by judge alone is an effective means of reducing the risk of prejudice in cases of this
Corresponding author:
David Caruso, University of Adelaide, North Terrace, Adelaide, South Australia 5005, Australia.
E-mail: david.caruso@adelaide.edu.au
The International Journalof
Evidence & Proof
2018, Vol. 22(2) 124–143
ªThe Author(s) 2018
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DOI: 10.1177/1365712718765548
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kind. In the second-reading speech concerning the Courts and Crimes Legislation Further Amendment
Bill 2010 (NSW), for instance, then-Attorney-General John Hatzistergos said:
1
Judge-alone trials are appropriate in a limited number of circumstances. For example, they may be appro-
priate where there are concerns that cannot be overcome regarding pre-trial publicity, or where the evidence
of the trial is likely to be highly technical.
Similarly, it was observed by McKechnie J in TVM vThe State of Western Australia:
2
It can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at
hand to militate against the unfairness by ordering a trial by judge alone. A common example of unfairness is
pre-trial publicity ...the interests of justice might require trial by judge alone to overcome any lingering
prejudice.
This article critically examines reforms aimed at facilitating trial notwithstanding prejudicial media
coverage. The article has two key objects. First, it investigates theprinciples underpinning the availability
of trial by judgealone in cases of serious prejudicial publicityand the different legislativeframeworks that
have evolved in different Australian jurisdictions.Second, it critiques these principles by analysisof a line
of psycho-legal research which examines the comparative abilities of judges and jurors to disregard
prejudicial publicity in particular, it builds on previous work by the authors and embeds that analysis in
a detailed doctrinal context (see McEwen and Eldridge, 2016). Indoing so, it interrogates the assumption
that a trial by judgealone will be fairer to an accusedwho is the subject of significantprejudicial publicity.
Before taking up the first of these tasks, it is necessary to briefly explain the significance of this
analysis and its place in the broader debate respecting the jury trial. As noted above, the preference for
trial by judge alone in cases of prejudicial publicity rests on the assumption that a judge is able to more
effectively disregard prejudicial material than a juror. Despite judicial confidence in the ability of juries
to carry out their function in an impartial and unbiased manner,
3
there are nonetheless many explicit and
implicit judicial endorsements of this assumption. Indeed, this view has been propounded in the High
Court. In Victoria vAustralian Building, Construction, Employees’ and Builders Labourers’ Federa-
tion, Mason J, as his Honour then was, remarked that ‘[o]bviously judges are more capable than jurors of
putting aside prejudicial material, including public prejudice.’
4
This view merits interrogation. This is the case for three reasons. The first is that the continuing
growth and reach of social media means that the problem of prolific, prejudicial online publicity is not
one that will disappear with time. It is likely to become more, not less, crucial to find ways to moderate
the effects of prejudicial publicity.
The second is that, in the wake of the decision of the High Court in Alqudsi vThe Queen,
5
it is clear
that without constitutional change, trial by judge alone will not be available for indictable Common-
wealth offences.
6
If empirical evidence indicates that trial by judge is indeed a fairer means of con-
ducting trials which are affected by prejudicial publicity, this may provide an impetus for constitutional
change.
1. New South Wales, Parliamentary Debates, Legislative Council, 24 November 2010, 28073 (John Hatzistergos, Attorney
General).
2. [2007] WASC 299. See also RvKissier [2011] QCA 223, [40]–[50] (Mullins J); RvKing [2013] NSWSC 448, [56]–[60]
(Bellew J).
3. See, e.g., Alqudsi (2016) 258 CLR 203, 252[120]; Gilbert vR(2000) 201 CLR 414, 425 (McHugh J); John Fairfax Publications
Pty Ltd & Anor vDistrict Court of NSW & Ors (2004) 61 NSWLR 344, 366 [103] (Spigelman CJ).
4. (1982) 152 CLR 25, 102.
5. Above n 3.
6. Above n 3 at 252[120] per Kiefel, Bell and Keane JJ, 150[60] per Gageler J, 78–9[212]–[213] per Nettle and Gordon JJ.
McEwen et al. 125
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