Updated October 28, 2022
Updated October 28, 2022
The article Trial By Media or Trial By Jury? is written by Sophie Parsons, Partner, In House Counsel, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.
Sophie is based in the Melbourne office and is one of the firm's in-house counsels and trial specialists. She is an experienced criminal lawyer who has appeared in a broad range of legal matters in Victoria and the Northern Territory.
Sophie appears in bail applications, contested hearings, committals, trials, appeals and pleas of guilty, in both the adult and youth jurisdictions. She has also appeared before investigative bodies such as Royal Commissions.
Public debate around trial by media often intensifies when high-profile criminal cases dominate the news.
In simple terms, the trial by media refers to situations where news reports, commentary, and social media shape public opinion about an accused person before the case is heard in court.
The discharge of a jury in a recent high profile rape trial in the Supreme Court of the ACT has served to highlight the limitations of criminal trials by jury.
The case has raised questions about the efficacy of judicial directions in some criminal jury trials, the importance of retaining the option of judge alone trials in high-profile and complex cases in Victoria, and the need for vigilance with respect to the careful and appropriate reporting of criminal cases by the media.
The trial by media refers to media coverage or commentary that shapes public opinion about an accused person before all the evidence is heard. Headlines and speculation risk undermining the presumption of innocence and can interfere with the fairness of a trial by jury.
This poses a serious risk, since:
One of the most discussed trial by media examples in recent years is the ACT rape trial involving Bruce Lehrmann and complainant Brittany Higgins. It was widely reported that Ms Higgins criticised Mr Lehrmann’s decision to exercise his right to silence, even though this is a fundamental protection available to every accused person. In contrast, a complainant must give evidence – both in a statement and in person at trial – because this is the only way allegations can be proved beyond a reasonable doubt.
These rights and procedures apply in every criminal case, whether a trial is heard by a judge alone or by a jury, regardless of how high-profile the matter may be.
However, when media coverage becomes extensive or speculative, the fairness of a criminal trial, particularly a trial by jury, is at risk. Jurors may be exposed to prejudicial commentary that has nothing to do with the admissible evidence before the court.
In the ACT matter, Mr Lehrmann’s lawyers sought to have the trial halted due to the sheer volume of media reporting, although this application was refused. Following the later discharge of the jury, ongoing coverage and commentary have raised real concerns about whether a fair trial can occur at all.
Such outcomes do not serve the complainant, the accused, the broader community, or the integrity of the justice system.
A trial by jury is a criminal trial in which a person’s guilt or innocence is decided by twelve impartial members of the community. These jurors listen to the evidence, consider the law as directed by the judge, and deliver a verdict based solely on what is heard in court.
The benefit of a jury of 12 randomly selected members of the public deciding the outcome of a criminal case has long been understood.1
The principle has been recently restated by the Victorian Court of Appeal in an appeal about an application for a judge alone trial:
“for centuries, the right to trial by jury has been understood and upheld, in this State, as a fundamental right of any person charged with an indictable criminal offence”.2
In Victoria, most serious criminal offences are heard before a judge and a jury of twelve people.3 In a trial by jury, the judge explains the law, and the jury applies that law to the facts to decide whether the accused is guilty or not guilty. It is a significant responsibility, particularly in complex matters.
In plain terms, the jury’s role is to:
The judge provides both mandatory and discretionary directions to the jury, including directions under the Jury Directions Act 2015 (Vic), to ensure jurors understand how the law applies to the evidence. Before these directions are given, the prosecution and defence may make submissions (in the absence of the jury) about which directions are appropriate.
In some situations, the way a judge directs a jury can form the basis of an appeal, which reflects how central jury directions are to the fairness of a criminal trial.
Judicial directions are the instructions a trial judge gives to a jury about how they must apply the law and assess the evidence. The entire trial by jury system relies on the assumption that jurors listen to those directions, follow them, and decide the case only on the admissible evidence presented in court.
In theory, juries are capable of doing exactly that. In practice, particularly in high-profile cases with intense media coverage, the effectiveness of judicial directions can be tested.
A jury may be discharged when something occurs that compromises the fairness of the trial. This can happen at any stage of the proceedings, and either party may apply for a discharge if there is a concern that the jury (or an individual juror) can no longer perform their role impartially.
Common reasons for discharging a jury include:
Depending on the circumstances, a judge may discharge a single juror6 and continue the trial with the remaining members, or discharge the entire jury if the contamination affects the panel as a whole.
A recent example is the ACT rape trial, where a juror brought outside material into the jury room that had not been admitted into evidence. This misconduct, discovered during the trial, led to the entire jury being discharged. It also demonstrated how easily a juror can access information online despite being instructed not to conduct independent research.
In Victoria, judge-alone trials are currently available only in limited circumstances, including when it is “in the interests of justice.” .7 IThis option is significant for an accused person, but with proper legal advice, it can offer a fairer pathway in complex or heavily publicised matters where trial by media has the potential to influence jurors.
Other states and territories, including the ACT, NSW, WA, and QLD, introduced legislation for judge-alone trials earlier and generally allow broader access to them.
Notably, publicly available statistics from NSW show that judge-alone trials often result in higher acquittal rates, suggesting that judicial decision-making may provide a clearer assessment of the evidence in certain types of cases.8
For particularly difficult or high-profile matters, preserving the option of a judge-alone trial in Victoria remains essential. Ultimately, the question is how best to ensure that justice is done (and seen to be done) when media coverage threatens the fairness of the criminal process.
There is a long-standing tension between freedom of expression and the right to a fair trial. While open discussion is important in a democratic society, unchecked commentary, particularly online, can influence public opinion before the evidence is tested in court.
In the digital age, 24/7 reporting, opinion pieces, and social media commentary can quickly compromise the fairness of a trial by jury, where jurors must remain impartial and base their decision solely on admissible evidence. The difficulty created by online media can be addressed by parliament passing a law that any publication of a detail concerned with a pending criminal case is criminally liable. Alternatively, the present legislation in relation to suppression orders could be amended to become more broadly accessible.9
Being charged with a criminal offence is stressful; facing that charge under media attention can feel overwhelming. Public commentary, speculation, and online scrutiny can leave you worried about whether you will receive a fair trial.
The defence team at Doogue + George has decades of experience protecting clients’ rights in complex and high-profile cases. We understand how media pressure can affect jury trials, and we act quickly to safeguard your right to a fair hearing.
Speak to us today — you don’t have to face this alone.
Trial by media is dangerous because it can damage a person’s reputation, undermine the presumption of innocence, and influence public perception long before the evidence is heard in court.
Jurors are legally prohibited from conducting their own research or accessing information about the case, including on social media. These restrictions exist to ensure decisions are based only on admissible evidence.
Judge-alone trials are available in jurisdictions such as the ACT, NSW, WA, and QLD, and are often used in complex matters or cases involving extensive media coverage. They remain less accessible in Victoria but can be approved where it is “in the interests of justice.”
If a juror accesses or brings in material that was not presented in court, the judge may discharge that juror – or in serious cases, the entire jury – to protect the fairness of the trial.
[1] Jury Empanelment: Report published by the Victorian law Reform Commission 3 September 2014
[2] McInnes v The Queen [2022] VSCA 188 (2 September 2022) at [60] per Priest and Beach JJA
[3] Juries Act 2000, section 22 (2). Sometimes more than 12 are selected, but only the verdicts of 12 are counted.
[4] Juries Act 2000, s78A, maximum penalty of 120 penalty units
[5] Juries Act 2000, s78, maximum penalty of 600 penalty units or imprisonment for 5 years.
[6] Juries Act 2000, s43
[7] Judge alone trials were introduced in Victoria as a temporary measure to deal with backlogs and other delays associated with COVID-19 efficiently and fairly by the introduction of the Justice Amendment (Trial by Judge Alone and Others Matters) Act 2022 which inserted the new Chapter 9 into the Criminal Procedure Act 2009.
[8] Boscar. “The Effect of Judge-Alone Trials on Criminal Justice Outcomes.” BOCSAR Homepage, NSW Department of Communities and Justice, 2024, bocsar.nsw.gov.au/media/2024/mr-effect-of-judge-alone-trials-cjb264.html.
[9]Open Courts Act 2013
“This content is for informational purposes only and should not be considered legal advice. Please consult a qualified criminal defence lawyer before making any decisions regarding your matter”
