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Paedophile case sparks lawyers' warning -

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Paedophile case sparks lawyers' warning

The World Today - Monday, 7 July , 2008 12:24:00

Reporter: Nicole Butler

EMMA ALBERICI: Lawyers are warning the media and politicians that if they don't stop interfering
with the courts, cases will be dropped and criminals will be allowed to walk free.

Last week, a Brisbane judge dismissed charges against a notorious paedophile partly on account of
intense publicity which he said prevented a fair trial.

The hysteria surrounding that decision saw a Queensland magistrate suppress the name of a man on
child pornography charges a few days later for fear of a similar media frenzy.

Most lawyers aren't surprised or opposed to the two rulings. Some are predicting more and more
cases Australia-wide will be thrown out unless the growing phenomenon of trial-by-media and
politicians stops.

Nicole Butler reports.

NICOLE BUTLER: Queensland spent much of last week on the brink of hysteria thanks to a court
decision about one of the state's most notorious paedophiles.

On Tuesday a Brisbane judge dismissed child sex charges against Dennis Raymond Ferguson partly
because the intense publicity surrounding his case prevented a fair trial.

The ruling sparked a man-hunt by journalists and with cameras rolling Ferguson was run out of the
small town of Miles less than two days after the District ourt set him free.

Then to end the week Magistrate Bernadette Callaghan partly gagged the media covering a child
pornography case on Queensland's Sunshine Coast for fear of another Ferguson-style reaction.

She said that media actions had forced authorities to decide whether a person went to trial or not
and that journalists must take some responsibility for what had happened.

An actor replays the magistrate's comments.

BENADETTE CALLAGHAN (voiceover): I am concerned that in the media of recent days there has been a
feeding frenzy. I am of the view that the courts should be open, but there's an ongoing

NICOLE BUTLER: Magistrate Callaghan suppressed the 28-year-old suspect's name and closed the court
for the bail application.

Local newspaper, The Sunshine Coast Daily, unsuccessfully argued against the suppression order.

But editor-in-chief Mark Furler says the newspaper wasn't interested in trading on the Ferguson

MARK FURLER: We believe that it was in the public's interest to know more of the details of what
was going on in terms of protecting future victims of this, you know, alleged perpetrator.

NICOLE BUTLER: Mr Furler believes if judges use the Ferguson case to impose more restrictions on
reporters then public safety will be compromised.

MARK FURLER: I think when you start having an increase in suppression orders and the like then the
public is not fully informed, they're not warned of the potential of these sort of people in our
communities, and you get a situation where, you know, these people, you know, can operate under a
veil of secrecy imposed by the courts.

Human rights lawyer, Greg Barns, says Magistrate Callaghan's was right to issue a suppression order
in the wake of the Denis Ferguson hysteria and particularly after the Prime Minister Kevin Rudd
weighed into the debate and said the community had a right to know where paedophiles were living.

GREG BARNS: I don't know what in the waters up in Queensland at the moment but the media's conduct
and the conduct of as I say people like Kevin Rudd are after the Ferguson decision absolutely
proved the points of judge (inaudible), that was that this man could not get a fair trial and his
right to a fair trial was being undermined by the publicity frenzy.

The decision by a Sunshine Coast magistrate to suppress the name of a person is obviously very
sensible and I think it's going to be much easier now for lawyers acting for defenders in sex abuse
cases to argue for suppression orders.

It's obvious that politicians and the media and campaigners cannot be trusted to respect the right
of people to a fair trial.

NICOLE BUTLER: The Liberal and Democrat supporter says suppression orders have been on the rise
over past few years Australia-wide, in some states more than others.

But he says they could become much more common unless the laws of sub judice are properly observed.
Mr Barns says it's not the headline-seeking media that's behaving badly.

GREG BARNS: Politicians and we saw under the previous government - the Howard government - this
lack of appreciation by politicians for the separation of powers and for the rights of people to
have a fair trial and for the courts to go about their work without interference from politicians.

Kevin Rudd needs to be sent back to school, he doesn't understand a separation of powers doctrine,
but he's not alone there.

Politicians right throughout Australia are constantly commenting on cases. When cases are before
the courts politicians should seal their mouths.

What they're doing is they are ensuring that the open justice system becomes less open, it's their
fault, it's not the fault of the courts, the courts are simply doing their job, which is ensuring
that everyone irrespective of what they're charged with and who they are, are entitled to a fair

NICOLE BUTLER: But perhaps even more concerning than a closed court system is the prospect of more
and more cases being dismissed because the judges believe pre-trial hype has denied the accused a
fair trial.

Eva Scheerlinck is CEO of the Australian Lawyers' Alliance.

She says unless the media and politicians stop commenting on cases before they're heard in court,
criminals could be allowed to walk free.

EVA SCHEERLINK: If we don't allow our legal system to go through its proper processes and we do
make a mockery of some of these cases and prejudge people in the press, then people won't be able
to get a fair trial and if they can't get a fair trial, that means that they'll have to be

EMMA ALBERICI: Eva Scheerlinck from the Australian Lawyers' Alliance ending that report by Nicole