Right to a Fair Trial in NSW & Public Commentary

Everyone has the right to a fair trial

You must be proven guilty in court.

Everyone accused of a criminal offence in Australia has the right to a fair trial.

Until and unless a defendant is proven guilty in a court of law, he or she has the right to be presumed innocent.

However, many people believe that sensationalised and misleading reporting of criminal cases makes it difficult, if not impossible, for those accused to have a fair and impartial trial based solely on the admissible evidence presented – that the presumption of innocence is thrown out the window once mainstream media journalists get their hands on information about a case.

As a result, there have been proposals for a blanket ban on reporting on criminal matters until a defendant has pled guilty or been convicted guilty.

Public Commentary on Court Trials in Criminal Law

High-profile trials are nothing new, but the rise of social media has created a situation in which tens of thousands of people can publicly express their opinions and pass judgement based on scant, misleading, or simply false information – a situation in which it may be impossible to find jurors who are not tainted in some way before the trial begins.

This can have a negative impact on concepts of justice and a fair trial, and can even result in false convictions based on inadmissible evidence.

The Australian Capital Territory’s top prosecutor has issued a warning against “officers of the court and public figures” making public comment on active cases following the furore over prime minister Scott Morrison’s comments to Brittany Higgins.(The Guardian)

Mr Lehrmann is facing a charges for the alleged sexual assault in the Parliament House in 2019.  The High Court has recognised very extreme cases of adverse pre-trial publicity could justify a stay of a prosecution. (Financial Review)

“I’m sorry to Ms Higgins for the terrible things that took place here…” Said the PM. (BBC News)

“The Prime Minister was referring to the many terrible experiences Ms Higgins has detailed during her time working at Parliament House and the treatment that she has described receiving whilst working here,” they said.

“I strongly discourage all public commentary on active cases….(this is referring to oral and written commentary) particularly by officers of the court and public figures,” Mr Shane Drumgold said – Mr Drumgold is the ACT’s director of public prosecutions. (Financial Review)

Winston Terracini, SC, one of Australia’s leading defence barristers, said that Mr Morrison made the comments without any factual basis.

The comments made by the PM were labelled as “reckless” and an “appalling intrusion into the criminal trial process”, there is doubt that “any jury can be struck in the ACT” that was not aware of the comments made. (Financial Review)

However, in the days following the PM’s address, the Director of Public Prosecutions in the Australian Capital Territory (where the Higgins trial will be held) released a statement calling for an end to “any public commentary,” including “by employees of the court and public personalities.” (Financial Review)

This isn’t just about defending the accused; it’s about ensuring a fair trial for everyone involved, including the complainant.


Challenges of the NSW legal system

In major criminal cases, such as those tried in the District and Supreme courts, a jury is usually charged with judging whether a person is innocent or guilty.

However, in certain circumstances, such as when there has been extensive media coverage and it is thought to be difficult to obtain a truly impartial jury, legal defence teams might request a judge-only trial.

During court hours and while deliberating a verdict, jurors in New South Wales, Tasmania, and the Australian Capital Territory are prohibited from using cell phones or other electronic devices. The thought of monitoring a juror’s ­technology use during a trial is a severe infringement of privacy, therefore these guidelines are mostly predicated on trust.

There are also procedures in place to remove jurors who engage in misconduct, but courts generally avoid taking a harsh stance unless the matter is extremely serious, which could include subjecting jurors to criminal charges. Such as ‘contempt of court’, because such actions would most likely deter people from performing their civic duty.

The contest is still going on. One solution could be better pre-trial training and education for jurors, to help them understand the importance of their role and the potential influence of news and social media, with the goal of encouraging jurors to exercise self-control and avoid any information that could influence their decision-making in any way.



“Brittany Higgins’ accused to seek trial delay after PM apology”, accessed at: https://www.afr.com/politics/federal/brittany-higgins-accused-to-seek-trial-delay-after-pm-apology-20220211-p59vuc

“Brittany Higgins: Australian parliament makes formal apology to rape accuser”, accessed at: https://www.bbc.com/news/world-australia-60298574

“Brittany Higgins case: top prosecutor warns against ‘commentary’ after Scott Morrison’s remarks”, accessed at: