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Australians love true crime. However, in the age of citizen journalism and global media coverage, experts have serious concerns over fairness.

The last few years have seen a spike in true crime investigations in the media. Perhaps the most notable is podcast series The Teacher’s Pet, which clocked more than 28 million downloads as The Australian’s Hedley Thomas looked into the disappearance of Lynette Dawson, a mother from Sydney’s Northern Beaches. In November 2018, the series bagged Thomas a Gold Walkley, the nation’s highest journalistic accolade. In December, Lynette’s husband Chris was arrested and charged with her murder. The 70 year old is currently on bail and will face court later this year.

However, the storm of media coverage surrounding the podcast and the police investigation is raising serious questions over fairness and the presumption of innocence.

Law and prejudice

Dr Tyrone Kirchengast, an associate professor in criminal law at the University of Sydney, says any type of investigative reporting risks some form of prejudice to the defendant.

“We’re talking about unsatisfactorily narrowing the juror pool, in that the potential jurors – members of the public – could lose their objectivity and have a predisposed opinion about a fact in evidence or the guilt or innocence of an accused person, by virtue of there being prolific media coverage,” Kirchengast says.

While Australian society has always embraced investigative journalism – with professional reporters and editors looking into all manner of very serious issues and sometimes working with police – the advent of social media and citizen journalism is changing everything.

“The real issue now is the way in which that nexus becomes prolific, perhaps decentralised from professional reporters, democratised, such that ordinary people, ordinary concerned citizens, interested members of the public, can start their own blog or their own podcast that then reflects what might otherwise be the preserve of professional investigative journalists,” Kirchengast continues.

“Whether that changes what’s being said, the information available, I suspect it doesn’t. It’s just a different way of communicating crime and potential guilt of individual suspects, and a different way of engaging the public.”

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Podcasts have investigated the deaths of Lynette Dawson and Phoebe Handsjuk (pictured). Other cases scrutinised by popular culture media include those of Keli Lane in NSW and Adnan Syed in the US.

The rise of true crime

People have always been fascinated by true crime, especially murders. Dawson is just one high-profile example of a true crime media phenomenon trending around the world. 

The genre changed forever when American true crime podcast Serial was released in 2014, bringing a cold case to life with new information and little-known evidence investigated in story form. Created by journalist Sarah Koenig, the podcast looked into the murder of high school student Hae Min Lee in 1999 and queried whether her boyfriend, Adnan Syed, was wrongfully convicted of her murder. The series won a prestigious Peabody Award in 2015 and shattered podcast streaming records. Seasons one and two were downloaded more than 340 million times, and the case became a hot topic of discussion.

The podcast encouraged many listeners to believe that Syed was innocent, and last year a retrial was ordered on the basis of new evidence. However, that case was thrown out last month when Maryland’s Court of Appeals held the new information did not prejudice the original case. Syed is serving a life sentence.

Trial and re-trial by media

Lawyer and journalist Rachael Jane Chin is the author of Nice Girl, a book looking into the story of Keli Lane and her missing baby, Tegan. She is currently working on another book with Nicholas Cowdery AM QC, the former NSW Director of Public Prosecutions, about his time in the role. She is concerned that true crime media campaigns can amount to a “re-trial by media”.

“They encourage listeners to doubt the outcome reached in a court of law by presenting a very distorted, incomplete and partisan view of the facts of any case, even if the journalists involved are intelligent people motivated by good intentions,” she tells LSJ via email. 

“Can you imagine the hopes Serial would have raised for the family of the offender in that case, and the distress for the family and loved ones of the deceased?”

When crime does pay

The trouble is, however, that true crime is profitable. 

Australian media has always reported on true crime stories in regular news coverage. However, our biggest media companies are now investing heavily in long-form crime stories as a means to attract and retain consumers in an increasingly competitive digital environment. 

For example, Fairfax (which is now part of the Nine Entertainment Company) launched a six-part true crime podcast called Phoebe’s Fall in partnership with the University of Wollongong, which followed the life and death of 24-year-old Melbourne woman Phoebe Handsjuk. Handsjuk died under suspicious circumstances at the bottom of a garbage chute in 2010. The series raced up the iTunes charts and was downloaded more than a million times, subsequently winning a Melbourne Press Club Quill Award for journalistic excellence in November 2016.

In July 2018, News Corp launched a dedicated section on the websites of each of its state mastheads, including Sydney’s Daily Telegraph, Melbourne’s Herald Sun and Brisbane’s The Courier-Mail, called True Crime Australia. This is part of a widely-publicised strategy to drive new subscriptions and reward readers for their loyalty. The site attracted more than a quarter of a million unique browsers on the first day it launched.

Nine is on the bandwagon too – debuting a range of true crime programming such as the four-part series Inside Crime, hosted by Leila McKinnon, which premiered in September last year and re-examined some of the most brutal crimes committed in Australia over the past 10 years. A Nine media release issued at the time promised the crimes would be “brought back to life and analysed in a raw and confronting way”.

Public perception of justice

Keli Lane’s case is another example of media saturation around a trial. Her daughter Tegan disappeared in September 1996, never to be seen again. Lane was convicted of Tegan’s murder in 2010, even though the body was never found, there were no witnesses, no forensic evidence and no clear motive. Headlines published after the trial branded Lane a “baby killer”. 

Dr Michele Ruyters is Deputy Dean of Justice and Legal Studies at RMIT University in Melbourne and Director of the Innocence Initiative, which examines cases of people who believe they have been wrongfully convicted. Lane’s murder conviction is one of them. Last year, the Innocence Initiative wrote to NSW Attorney-General Mark Speakman, requesting a review of the police and prosecutorial practices that led to her conviction. According to Ruyters, it has “all the hallmarks of a wrongful conviction”. 

She says saturated media coverage has a powerful influence on public perception of justice. 

“These true crime podcasts have a great place in raising awareness and making us question things that may be wrong in the system, but I am concerned that it may be shifting where the presumption of innocence starts – and that in Chris Dawson’s case, as with Keli Lane, we may be starting with a presumption of guilt,” Ruyters says. “The more people invest in true crime and the more people participate, the more I think the presumption of innocence is on a sliding scale.”

Scrutiny and confidence

On the other hand, Ruyters notes that media coverage can be powerful in raising questions, bringing new evidence to light, and holding authorities accountable.

“Getting up to the pointy end of an investigation, in a trial, it might make everyone a little more conscious that they are open to scrutiny, so police and prosecutors may be a bit more rigorous in their attention to detail. It’s both good and bad.”

Lane’s case was re-examined last year in ABC’s three-part series Exposed: The Case of Keli Lane. Journalists Caro Meldrum-Hanna and Elise Worthington critically evaluated the original investigation, poking holes in police process and uncovering compelling new evidence. The program was a hit. ABC reported the three episodes attracted just over a million viewers each and became the third most popular program on iView in 2018. The associated online articles have clocked more than 2.4 million page views, and the show attracted 34,168 committed followers on Facebook, who were all able to contribute directly to the investigation. 

“The doubts about the fairness of the murder trial are out there now for all to see,” Meldrum-Hanna told ABC’s Backstory in December.

“Public confidence in the administration of justice is paramount here.”

Bias and infotainment

University of Newcastle criminologist Dr Xanthe Mallett has a research interest in the impact of external influences that may result in bias in the decision-making processes of jurors. She was also involved in the Innocence Initiative’s request for an inquiry into Keli Lane’s case and says bias can be a key factor.

“When a mother is accused, it really throws people,” Mallett says. “How could a mother who has grown this human being and given birth to them do something so destructive? It’s offensive on a primordial level. I do think we hold women to a higher moral standard.”

Mallett has written about both males and females who intentionally harm children and says there’s a perception that males are inherently more violent while women are nurturers. In that sense, she says there’s no punishment severe enough for a mother – and that judgment sparks a media storm.

“You can see why crime is fascinating to people, but are we just making it infotainment?” she asks.

Former NSW Director of Public Prosecutions Nicholas Cowdery rejects the view that “pop psychology”, including gender and societal expectations,  plays a part in the criminal legal process.

“The media has no influence at all on the DPP’s decision to prosecute,” Cowdery says. “Indeed, prosecutors put completely out of their minds any such publications when they make decisions in the course of prosecutions and they are trained to do so.

“The decision to prosecute is based on the facts that may be proved by theevidence, inferences that may reasonably be drawn from those facts, the law and the Prosecution Guidelines. And nothing else.”

Judge-only trials to reign?

Judge-only trials may occur for state offences under the NSW Criminal Procedure Act 1986 if an application is made to the court and both parties agree. The provisions allow a trial to proceed with a judge making findings of fact, which is normally the responsibility of a jury.

Tyrone Kirchengast says judge-only trials are a viable alternative in high-profile cases, however, he says there must be valid reasons. After all, it’s not impossible for a 21st-century jury to sequester itself from the media.

“They can remove apps from their phones, they can tell their friends and family not to discuss it with them,” he says. “Controlling the rest of society is more difficult, but the integrity of the jury trial and the fair trial can be preserved, even with highly-speculative cases.

“There are other cases subject to significant notoriety – organised crime cases, for example – that have still proceeded before a jury, where they have been able to find 12 people who had not seen the media coverage. These are not issues that the court hasn’t dealt with before.”