More #Ashby #mediafail: Joan Evatt on the appeal

Chief Justice of the Supreme Court, the Honourable Justice James Spigelman, second right,Source: The Daily Telegraph

Chief Justice of the Supreme Court, the Honourable Justice James Spigelman, second right,Source: The Daily Telegraph

By Joan Evatt
@NoFibs legal writer

May 13, 2013

The last time I entered a courtroom, nearly 28 years ago, I was so heavily pregnant I waddled rather than walked. I was a character witness for a work colleague discovered driving without a licence.  On that occasion I exchanged heated words with the Prosecutor, a pompous prat with a Jimmy Edwards handlebar moustache, much to the amusement of the judge and a bunch of law undergraduates. With my last name it is always difficult to have anything to do with the law, as assumptions will be made. So it was with a certain concern mixed with caution when I decided to follow the Ashby v Slipper appeal.

I have long been frustrated by the quality of the dailies’ coverage of legal matters. My frustration was underscored by the media’s serious misunderstanding of issues and decisions at the directions hearing before Emmett J.  I decided to do that ‘mother’ thing.  You know: ‘If you can’t get somebody to do it right, go do it yourself and stop complaining.’

Throughout the recent hearing dates in the Ashby v Slipper appeal certain key matters constantly gnawed at my gizzards. I wanted to vent because I believe them to be of critical importance.

One was the mainstream media’s coverage of this case, which, if it is indicative of how they cover most cases, means we’re in trouble. (See here and here)

The media’s incompetence raised two critical issues, which are fundamental to law and the practice of law in this country, and more importantly, the effectiveness of the administration of justice.

Unbeknownst to me, I wasn’t the only one doing handstands on Wednesday trying to get my hands on the written submissions of the three parties; Harmer, Ashby and Slipper. The written submissions outline the key areas that each of the three lawyers would talk to during the two days of hearing.  To not be able to read written submission at the very least means you are walking cold into a case and will find it impossibly difficult to follow.

On Thursday – day one of the hearing – I discovered David Marr who was without written submissions as well. He toddled downstairs to the Registry while I went to work on the legal representatives to see if I could acquire the submissions for perusal. To give all parties their due they had no problem with sending and giving us their submissions. For that I’m very grateful to Michael Lee SC (Ashby’s barrister), Anthony McClellan, from AMC MEDIA –  (the well known Public Relations firm working for both Mr Ashby and Mr Harmer) – and to Peter Slipper’s barrister Mr Ian Neil who gave us the submissions immediately.  It wasn’t until the next day that their Honours let it be known that written submission would be placed online for our access.

The judiciary and the legal fraternity cannot have it both ways when it comes to being critical of the quality of mainstream media coverage of the courts. Just as judges and lawyers have to do their homework before going into court to either hear or present a case, so does the media.  For journalists to cover a case cold does the parties and the system a disservice. Is it any wonder then that the reports written by journalists with difficult deadlines become more error-prone? A journalist’s role is a critical one to a justice system where open justice prevails.

There are three principles that form part of the justice foundation stone that underpins any functioning democratic society. The first is the independence of the judiciary from interference, and especially political interference, known under the banner headline as the separation of powers; a principle enshrined in our constitution.

The other two are conjoined at the hip but always remain in permanent conflict. Each one is critically important in itself, but both are engaged in a never-ending war with each other in an attempt to gain dominance.

The first is the administration of justice, which is a concept that is about a community having a structure and a process in place for dispute resolution and dispensing justice that is fair and untainted by either corruption or other external influences such as trial by media.

The administration of justice has to be fair, just and impartial which assumes a level playing field between the parties when in the courtroom. Of course, those with bottomless pockets will always have the advantage. They can hire the stronger team. It now appears you also need to hire a Public Relations firm.

Anthony McClellan is a former journalist who runs a prestigious PR firm and golly he’s good.  He’s short, engaging and he twinkles. If he says he’ll do something; he does it. It is a joy to see him work a room. He whispers in the appropriate ear when he feels the need, and spends the day massaging the message and the media.

The Ashby prepared statement before the commencement of the first day’s hearing was inspired. That was pretty much all that those of the mainstream media who were present, carried that night on television and radio. London to a brick on this was McClellan’s strategy and execution. If I was ever to be in trouble, I would want his firm. He’s one very clever bugger.

However, the question remains; does the active role of a PR firm during the process of a court case taint the process in any way through spinning their message to a media anxious for additional tidbits that help their plight?

I’ll leave this to the legal eagles to argue, but it worries me and I think is a question worthy of careful consideration by those involved in the administration of justice and those who are concerned that it remains untainted.

Of course, the tainting of the process of the administration of justice is at the core of the Rares decision in Ashby v Slipper. I’m not sure the media coverage indicates an understanding of just what that is and what its implications are. I’m pretty sure the media would never question whether their being fed, and their acceptance of, spin from a PR firm is possibly tainting the process.  So why would I expect them to be concerned about the core of Rares’ decision, which finds political operatives tainted the process of the administration of justice to achieve a political outcome favourable to their cause. The Rares decision is important as no act of terrorism could do as much damage as any domestic action that effectively undermines any of the institutions that bear the burden of our democracy.

The other issue is the principle of open justice.  As they say in the classics; “…justice should not only be done, but should manifestly and undoubtedly be seen to be done.”  Well in this instance it was said by Lord Hewitt in Rex v Sussex Justices; Ex parte McCarthy which all lawyers seem to regard as a classic because His Lordship’s words are so often quoted.

Courts are public domains. With the exception of the Family and the Juvenile Courts, all courts are open to the public. This allows ordinary citizens like you and me being able to toddle into a courtroom to ensure that the court is not behaving like a ‘kangaroo’ court. It doesn’t matter if you’re the Queen of England. If you are in a case either as a party or a witness you have to appear in an open court before the public.

When the entire population of Sydney can’t get into a courtroom to see Gina Rinehart ‘s family stoush we then rely on the media to do the public oversight job for us. They become our eyes and ears in the courtroom. This is their role during a court proceeding. What you see when the media is doing their job properly, and in accordance with the law, is the open justice principle at work.

There were so few members of the mainstream media present during Ashby v Slipper appeal hearings. Given the media had pages covering the details of the case when Ashby first sued Slipper and when the case first started being heard, it’s a matter of real concern to me that there wasn’t a word in the printed version of the SMH Sat. edition the day after the hearing finished. Not one word.

If the media starts to cover a case there is an obligation on the media’s part to finish covering it, and that means both sides. Otherwise, the media is both abdicating their responsibilities as our eyes and ears, and tainting the process of the administration of justice by not being balanced in their coverage. If the media reports on one side of a legal matter, they are legally obliged to also report the other side’s case.  By failing to fulfil this obligation they have under the principle of open justice, the public’s knowledge of a court case becomes distorted and the process of the administration of justice is made more vulnerable to being tainted.

Again I leave these issues to the legal powers that be but it’s worrying the hell out of me.

There is some interesting reading for those of you like-minded possums patient enough to get beyond the legal eagle jargon and distil the guts of what lawyers are trying to say.

Jim Spigelman gave a wonderful speech when he was Chief Justice of the NSW Supreme Court entitled ‘SEEN TO BE DONE’ a look at the principle of open justice.

Garth Nertheim wrote an article on the issue of ‘Open Justice versus Justice’ that appeared in the Adelaide Law Review.  It outlines the dilemma when the two legal principles are discussed and how difficult it will always be to find the balance between the two.

Support an independent media voice. Support No Fibs Citizen Journalism.
Monthly Donation


  1. Thank you for your article. I have been looking for information on progress of this matter – could find none. Having watched on SBS 1 last night a program called”shadows of liberty” on how it is with the media in u.s. re distorting the news and too much influence on what we are told on so many matters. Seriously feel in this pre-election time we need to think long and hard about how things are going in Australia. Justice Rares got it right in my opinion and have hardly read anything about it.

  2. You are a treasure! So true… I have been wondering similar myself, though had not looked at this issue of non-reporting from the legal point of view as well. This actually makes it a double whammy of injustice. The media failing to fully report the initial judgement and now not bothering to follow up after crucifying Slipper so thoroughly really got up my nose. Now to find that this legal proceeding is not being covered, or as you say ‘open’ as it should be to those who cannot be in court is a travesty.

    Thank you so much for your time & effort. Many of us would be none the wiser without your work, it is really really appreciated lady :)

  3. SpudBenBean says

    Can’t understand why News Limited’s, Steve Lewis, wasn’t there! He appeared to be overcome by interest in this case from 20 April 2012 and before (if his visits to the sunshine coast and meetings with James Ashby are anything to go by). Shame he doesn’t want to tell the other side of the story now.

    Seems he’s no longer a journalist, just a gossip columnist or a polemicist or a propagandist.

  4. Thank you Joan for a view of proceedings I had not considered. That of media influence on the law in Australia. It has been very evident in what we see coming from the USA. I had been intrigued by the use of a media advisor; I now see a horrible parallel.
    As to why it is not being fully reported, apparently there are more important things to cover than turning the legal system into a circus, having politics run over justice or having democracy compromised.

  5. I also would like to thank you Joan. Explaining court processes in a way that is easy for us to understand is important at a time when their is so much apparent complete avoidance of proper reporting is very scary even for a novice like me.

    It scares me to think that a person should have be able to hire a PR person as well as their counsel, what does that do to the process of law? The law is the law not some ‘show’ that needs to be helped along with spin & advertising of the so called character of anyone connected with a case.

    What is happening to this country of ours. Are we to blindly follow the slippery slope that the USA seems to be taking with their ways of doing things. Who is to say that their way is the best way to do things. I for one don’t want to go down the path of being the follower, this country doesn’t deserve to be a follower. We need for the law to be exactly what it is meant to be, not to be manipulated by anyone.

    The law needs to be reported in a balanced & fair manner, for everyone to see that justice is being done. This is certainly is not what is happening because the journalists in this country have decided (or should I say the Media owners) that truth & justice are to play second fiddle to whatever games they are playing to have control of the populace.

    We should all be very, very ashamed of ourselves that we are allowing this to happen to us and we should stand up and fight this form of injustice being dealt out to all of us.

    I will not be manipulated by anyone if it is wrong & we should all be strong enough to tell those who would do the manipulating to behave in a better way or shove off.