ATL trial coverage must stick to evidence

By Bert Samuels, Guest Columnist

There is currently a struggle being staged between freedom of the press and the right to a fair trial. It has always been accepted as fair journalism that the press will disseminate accurately and fairly the evidence in an ongoing trial.

The tribunal of fact - be it jury or judge sitting without a jury - has often been cautioned to refrain from reading newspaper and electronic reports during the trial, as these reports are of no evidential value.

There is currently a case being tried by a magistrate involving the ATL Pension Scheme. A recent report in the Jamaica Observer of June 11, 2013 titled 'Blame the accuser, not the accused!' sought to detail the evidence in the trial. Unfortunately, the article, in several instances, has reported on material not yet received in evidence. For example, it quoted from a Kenneth Lewis who has not yet testified!

PUBLIC ACCESS TO TRIAL

This is most undesirable. The Constitution guarantees public trials. The public's free access to the courtroom promotes this right. Reporters' transmission of that which is taking place in court has them playing the all-important role of agents of the members of the public who cannot attend. This right preserves our right to observe the trial process, and is a guarantee against 'arbitrary justice' being dispensed in the absence of the public's view.

This is why Section 16 (3) of the Charter of Rights states that "all proceedings of every court ... shall be held in public". With every right, there is a corresponding responsibility. That responsibility is enshrined in the principle that all proceedings ought to be accurately reported.

A judge hearing a matter ought not to be exposed to reports lying outside of the evidence. The 13th edition of Phipson on Evidence, on the issue of a judge hearing inadmissible evidence (which is analogous to her hearing or reading that which is irrelevant in a trial), says, "Where the trial is by judges alone, it is undesirable that even judges should have to perform the mental gymnastics involved in ruling evidence inadmissible and then trying to ignore it any further than is necessary."

Inaccurate reporting

The magistrate is well advised not to read these newspaper reports. However, this is not sufficient to deal with the vice created by those who attend and report inaccurately on our behalf. Where there is inaccurate reporting of the evidence, or where that which is reported as evidence led in the trial and was not, in fact, led, can bring the judiciary into disrepute. This occurs when what we read as having taken place in court makes nonsense of the rulings during the trial and the final verdict arrived at by the judge.

Public hearings are to safeguard a fair hearing, protect the judicial process from becoming seemingly arbitrary, and are best recorded by responsible journalism without any interest to serve, other than the guarantee of fair play.

Bert Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.