Peter A Clarke

Today the Herald Sun has a fairly salacious splash about Theo Theophanous’ possible pending legal problems in Victorian MP Theo Theophanous accused of raping woman in Parliament | Herald Sun.  The The Age’s Woman tells of being ‘raped’ by minister   reportage is perhaps a few decibels less shrill  but it still rips a bodice or two. The victim is quoted at length.  From a lawyers perspective that is not the smartest move.  it provides a starting point to a line of cross examination if charges are laid.  Why all the reporting now? The obvious first answer is that it is probably the biggest political story to come (no pun intended) out of Spring Street.  The government has come under more strain from this accusation than the limp attacks by her Her Majesty’s Opposition.   Melbourne’s Fourth Estate are making hay because the sub judice rule does not apply at the moment.  Good for pit bull journalism, lousy for a free falling MP and not much good for the legal system. 

Sub judice  (Latin literally before the Court) prohibits reporting details of a case.   The  rule  provides that, with a few important exceptions and qualifications, it is a contempt to publish material relating to “pending” (that is, current or forthcoming) legal proceedings if that material has, “as a matter of practical reality, a tendency to interfere with the course of justice”. (see Hinch v Attorney General (Vic) (1987) 164 CLR 15).  In Hinch the court said the offending publication must “exhibit a real and definite tendency to prejudice or embarrass pending proceedings”. Whether there is that  tendency is determined from an investigation of the likely impact of the publication on one or more of the participants in the proceedings.

For example it is not necessary to prove that the jury or the relevant witness was actually influenced. Liability depends on there being a sufficient risk of influence, it may be imposed even though at the time of the offending publication the hearing of the evidence had finished and the jury, having been isolated from the media because it was considering its verdict, was not in fact exposed to it. The outcome of the proceedings allegedly affected is irrelevant. 

Obviously the Herald Sun article has been thoroughly legalled.  It escapes the problem of the sub judice rule because no charges have been laid.  I mean Theophanous has not even been interviewed so it can’t be said that there is even a prospect of charges being laid.  While there is no technical breach of the law one must wonder how much a jury pool has been tainted by this publicity if charges are laid.  Coverage is getting close to fever pitch.  Don’t expect the dial to be turned down too soon.

On a quick glance Theophanous may have a civil action in defamation against the Herald Sun. But the kicker there would be that even if no charges are laid and the Herald Sun defended the case all the allegations would be vented in open court. 

For the moment watch for daily salacious installments of this very sad and sorry story in the Herald Sun.  Once charges are laid and Theophanous appears before a Magistrate (and more than likely gets bail) the restrictions on reporting will apply.  While I am against censorship in virtually all its forms and supportive of a free and inquisitive press the salacious (and essentially one dimensional coverage) of this story leaves me feeling queasy.