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Bar Talk
29 May, 2007  

The NSW Bar n’ Grill is trying to get Rupert’s Smellograph done for contempt. In this case both sides seem to lack a certain moral authority

imageThe contempt case brought against The Daily and Sunday Smellographs by the NSW Bar n’ Grill has been adjourned until August 13, if you please.

There was great excitement when the matter came on before chief magistrate Graeme Henson at Downing Centre Local Court last Thursday (May 24).

The NSW Bar Association has accused the papers of crossing a line when it “named and shamed” 59 people, many of them lawyers, who provided character references for former senior public prosecutor Patrick Power.

Power pleaded guilty in January to possessing more than 400 images of child pornography and was sentenced to eight months jail by Henson.

On May 4 Henson granted the newspaper unopposed access to Power’s character references, along with an admonition to “exercise some measure of restraint”.

This was deliberately ignored, said Bret Walker, for the grill.

He accused the publisher of intending to “pillory, humiliate and punish people” for performing a “simple public duty”.

“Merely being a character referee attracted abuse of the most vulgar, scurrilous and inaccurate kind,” Walker told the court.

The bar association is alleging that over 15 different publications – in The Daily Telegraph, The Sunday Telegraph and on their websites – amount to contempt, because they have the effect of deterring people from providing character statements, to the detriment of the administration of justice.

* * *

But what really is going on here? The Smellograph was up to its usual spurious and heavy-handed efforts to give its scrubber readership another bust about the antics of the “elite” – this time by insinuating the witnesses were supporters of or accessories to Power’s crime.

Aside from the appalling crudeness with which it went about the task, the implied question posed by Rupert’s scrofulous reptiles was not a bad one: how is it possible to attest to the good character and integrity of a person who downloaded and viewed sex acts with very young children?

Of the 29,000 images on Power’s computer most featured homosexual porn but 433 depicted children, some as young as seven, in sexual acts with men. There was also a gut-wrenching 23-minute video showing the infliction of pain on a child. He had given one video the title: “Gay porn, young boy gets tired, gets raped, begs them to stop.”

Many of the references attested to Power’s “good character” and not just the high regard in which he was held as a crown prosecutor.

To give a slightly more extreme example – some might be able to ignore various glaring flaws and swear that Hitler was of good character because he loved dogs and was kind to little blond girls with blue eyes.

There are occasions when it is impossible to quarantine character from deeds.

It would be unlikely that the Tele would have given the story the front page, over-egged treatment if, say, a journalist had been charged with a similar offence and brought forward a small army of pals to provide character statements.

Similarly, the bar was up on its hind legs over the whole episode because a lot of the statements came from the profession and the honour of its members was at stake.

Yet, just imagine a fireman, for instance, who had the same treatment dished out to him by the press after being charged with possessing child pornography and gathering a fire truck full of character referees.

Do you really think in such a case the bar association would be pressing the court for a finding of contempt, rather than leaving the whole sideshow to the prothonotary or the attorney general or ignoring it completely?

* * *

imageA letter of complaint to the editor of The Daily Telegraph dated May 8 from bar president Michael Slattery (pic) and a press release were tendered to the court.

In opening Walker urged Henson to use his judicial discretion to refer, under s.27B of the Local Courts Act (NSW), 1982, the contempt hearing to the Supreme Court where it could be determined in the “usual adversarial manner”.

Tom Blackburn, for the papers, opposed the transfer application on the basis that Local Court contempt proceedings were not of a criminal nature.

It would be “an absurdly long bow to draw” for Henson to find a prima facie case of contempt, on the basis that the material was published with “an improper purpose”, he submitted.

Walker stressed that the bar association was not complaining about the publisher’s naming of the referees. That was clearly in the interests of open justice, he said.

However, he alleged, there was no attempt to fairly report what the character witnesses actually said. Their “naming and shaming” was a “palpable threat” to those who would come forward in the future, he argued.

He accused the Murdoch rags of running a campaign in which they were “the self-appointed guardian of the need to prosecute a crime”. (Not terribly dissimilar to what the bar association is doing here, is it not?)

Walker argued that it was “central to the administration of justice for the most reviled accused or convicted to have their case presented”.

He reminded the court that “the criminal jurisdiction has never required that references be received from people who approve of the criminal conduct”. It was “perverse and dangerous” to do so.

This line of argument proved central to Walker’s submissions as he turned to the publications themselves. Little was spared in his outpouring.

The quote from a character reference by Power’s boss, Mark Tedeschi, in a Telegraph article on April 25 headed, “Pervert prosecutor’s legal pals” was “laughable”, Walker contended.

imageIt could not be taken seriously as a fair report, consisting as it did of one sentence:

“In all the years I have known Dr Power [pic], I have always found him to be a person of the utmost propriety and professionalism in his work.”

Walker claimed the article headed “Pervert prosecutor: legal pals” suggested guilt by association and another titled “Child porn hypocrites” alleged those who gave references were “subliminally in support of the child pornography trade”.

Referring to several “extravagant” comments from bloggers on the Telegraph website, Walker said the legal profession accepted it had to put up with “wrong-headed blaggarding” of lawyers and judges. Inaccuracies were another thing.

Walker accused the papers of running a campaign of “monstrous denunciation”, noting the deliberate “naming and shaming” link between a photo of Power and photos of four referees in the article “Full list of Power’s supporters”.

He reminded the court that it was “not shameful to have employed a murderer and then to talk about that person’s work record”.

Anyway, it’s all back on August 13, when Henson will decide whether to send it to the Supremes and let those wheezers try and pick Rupert’s rags to pieces.


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