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ASHBY V SLIPPER APPEAL: the first round.

There were surprisingly few members of the general public present at today’s directions hearing before Emmett J in the matter of the Ashby v Slipper applications for leave to appeal to the Full Bench of the Federal Court. Is this issue dead in the water with the masses and is now only of interest to the mainstream media? I’ll let others decide.

The applications for leave to appeal were not heard today but will be heard before the Full Bench of the Federal Court during their May sittings. At the conclusion of the matter before Emmett J representatives of all parties toddled off to hammer out suitable dates in May.

It was made clear by Emmett J that if leave to appeal is granted by the Full Bench then they would likely go on to hear the appeal at that time during their May sittings.

One thing that did amuse me was the issue of the length of written submissions arguing a case for the leave to appeal to be either granted or rejected. Apparently written submissions are limited to 10 pages but parties for Harmer asked for them to be increased to 30 pages. Emmett J granted this request subject to the presiding judge of the Full Bench countering the request and enforcing the 10 page rule. (For some reason this tickled my fancy and I had a quiet snigger).

The other matter for business was the issue of costs being awarded to Slipper as a result of Rare’s decision now, of course, the subject of two applications for leave to appeal.

Emmett J slated the hearing on costs to 30th May. The logic seems to be if leave isn’t granted then the hearing on costs can go ahead, but it will be totally dependent on the outcome of the leave to appeal.

So bing bang wallah wallah bing bang – all over in a very short time.

The other highly amusing thing for me was my engagement with members of the mainstream media in the lift going down while they chatted between themselves trying to sort out what had just happened in court.

It was my “OH For Fuck’s Sake” moment as I then, without the benefit of any notes, gave them a six point summary as to what had happened – all done and dusted before we hit the ground floor. Once outside the court precincts I was asked to repeat what I had said in the lift, which I did while notes were taken, much to the amusement of the delightful Ross Jones, my comrade for the morning and occasional contributor to Independent Australia, the on-line magazine.

To my very best new friends in the MSM: Today wasn’t exactly rocket science, and it helps to prepare and listen to what is being said in court instead of chatting, even if it is about the case. I don’t even want to think about what is not being taught in journalism degrees.

The focus of the Ashby-Slipper story will change as this appeal proceeds. It isn’t about Ashby anymore or, for that matter, Slipper. Well, maybe a bit. But they are now playing second fiddle to Michael Harmer. Make no mistake Harmer is now driving this engine. That is the story in my view. Appeals will be lodged all the way if necessary because at stake is Harmer’s professional reputation and career. If I was occupying Harmer’s shoes I would be doing the same.


Can I say at the outset that I am not a lawyer I just seem to have accumulated a plethora of legal subjects in the various tertiary qualifications amassed over time. This has resulted in a love affair with matters legal. I guess it also helps that there have been lawyers in almost every generation of my family going back 900 years, give or take.
Being comparatively new to the whole social media thing I would like to just take the time to raise a couple of issues that are causing me some concern following the dreadful circumstances of Jill Meagher’s death.
Social Media allows all of us a ready voice enabling and empowering us to comment on virtually any matter.  It is a wonderful feeling of liberation. But there are a number of occasions where certain lines must be drawn in the sand, which result in our collectively needing to shut up.
The situation surrounding Jill Meagher’s death is such an occasion.
Now that the matter is sub judice, under the management of the justice system, under the judge as it were, all of us need to allow the administration of justice to do its job untainted by our opinions fuelled by our horror at the manner of Ms Meagher’s death.
Media workers have an obligation ethically as well as legally under the contempt sub judice rules, to report within the constraints that sub judice contempt allows.  This also applies to those of us who engage in social media. We too are obliged to follow the law.
If anyone of us in our ignorance taints or unwittingly corrupts the justice process then there is always the possibility that someone will walk who probably shouldn’t, or who will be incarcerated when they were innocent.
The courts are not supposed to take notice of the baying of the wolves at their door, but that kind of pressure can be hard to withstand. After all, judges too are only human.
Being in USA last year for the duration of the Casey Anthony trial, including the jury’s verdict and its aftermath, underscored how much I value the restrictions imposed on how our media covers criminal cases.  (Of course, this applies to members of the general public as well.)
There is no doubt that in the Casey Anthony matter a Not Guilty verdict would have been far more difficult for a jury if they had not been sequestered.
The sequestering of a jury is where a jury is effectively removed from the world. Their isolation effectively means no contact with the outside; no phones, papers, television, i-pads, i-pods, no i-anything. The aim is to ensure that the jury is not tainted by outside influences. The Casey Anthony jury was held in isolation for the duration of the trial until a verdict was reached, which was nearly seven weeks. It happens rarely in Australia, probably because of the costs associated with the practice.
The American media’s frenzied coverage of the Casey Anthony case was most unpleasant to witness. The vast majority of the mainstream media were convinced of her guilt in the murder of her 2-year old infant.  As for the shock-jocks on pay TV and radio, they were relentless in their pursuit of her, and gobsmackingly outrageous in the extreme.
Only a small select group of the media reminded people, during the trial process,  of fundamental human rights such as, the right to a fair trial, the presumption of innocence and the onus of proof resting on the State’s representative to present a case proving beyond a reasonable doubt the guilt of the person charged.  This small select media group included The New York Times and the faux news programme, Jon Stewart’s The Daily Show.
The vitriol hurled at members of the jury who found Casey Anthony not guilty of murder in the state of Florida (which has a capital punishment for murder 1) was unexpected and unprecedented. Individual members of the jury were so distressed they were moved to comment publicly citing some of their reasons behind the verdict.
They included two critical concerns for all jury members. The first was that the state wasn’t able to ascertain how the child actually died. The second was the absence of incriminating hard evidence rather than speculation and assumptions about how people should behave in these kinds of circumstances. It was on the speculation and assumptions that the rest of the country had convicted Casey Anthony and had metaphorically already strung her up.

The American media’s role was reprehensible. They didn’t like being shown to be wrong and therefore, made fools of by the jury. I suspect that the State of Florida’s decision to go with the big charge of murder one rather than a lesser charge of manslaughter, didn’t help.
To this day I don’t know whether Ms Anthony did or did not deliberately kill her child. And that is the point. The State’s DA was unable to supply the sufficient hard evidence to prove that she, beyond a reasonable doubt, did. On that basis there had to be only one outcome. It was a sophisticated decision by 12 members of the general public who took their responsibilities as jurors very seriously, and who were greeted by venom and death threats after their decision was handed down.
The whole time we were following the Anthony Case we were comparing it to Lindy Chamberlain. Enough said.
The area of contempt law in Australia does need to be clarified ensuring we all know what is expected of us. It also needs to be consistent and less discretionary, however, this is an on-going debate, which brighter minds than mine will ultimately resolve.
I’ve included a truncated version of the TIME ZONES for reporting and commenting on criminal matters that appears in Mark Pearson’s excellent ‘The Journalist’s Guide to Media Law – Dealing with legal and ethical issues’.  (Allen &  Unwin)


AFTER crime; BEFORE arrest or charges have been laid:

No restrictions are on reporting for contempt. Please remember that defamation can still apply.

AFTER  arrest or charges; BEFORE first court appearances:  

Reporting is to be limited to the BARE  FACTS of the crime. Do not interview witnesses.  Don’t mention confessions, previous charges or convictions , and there’s to be no identification of the defendant as this is usually an issue that will come before the court..

AFTER charges laid, during preliminary court appearances:   

As above. The details of the court appearance can be carefully reported.

DURING trial: 

The description of the BARE FACTS and a ‘fair and accurate’ report of the trial. Don’t try and second-guess the jury. Don’t speculate on a result.

AFTER trial BEFORE Appeal Expiry Date: 

Report with extreme care. An appeal can result in a new trial so as  no-one wants to taint the process therefore there’s no interviewing jurors, witnesses nor any implication that an acquitted person is guilty.

AFTER appeal or acquittal: 

GO for it.

Remember defamation laws still apply at all times.

Anyone can be charged with contempt subjudice. This is a defence for the administration of justice to proceed without being tainted. The right to a fair trial is as important a right as the freedoms to speak, assemble, to worship, etc. These fundamental rights underpin the basis of our democratic society. They form one group among many aspects of that, which civilizes us.
What does our civilized society need from us – the average Joe, or Josephine Citizen? In this instance it requires our patience, tolerance and minimal understanding of how the administration of justice works so it can do its job properly and effectively on behalf of us all.

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