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Adjudication No.  581  (July 1992) [1992] APC 51

The Press Council has upheld a complaint against a picture caption used with a report on the shooting of Edward James "Jockey" Smith; it also saw an ambiguous one of the headlines used.

Other aspects of the complaint, from Mr Tim Anderson, were dismissed.

Mr Anderson complained to the Australian Press Council about an article in the Sunday Telegraph of 10 February 1992, on three grounds numbered below.

1. Mr Smith's legal rights

Mr Anderson says the headlines, "Gunman paid in his own coin", and "Criminal talked his way out of two life sentences" and the caption for a photograph, "Jockey Smith ... after he had been given a life sentence for the murder of ... Lloyd Tidmarsh" all combine to suggest Mr Smith was guilty of that murder. In fact, the Court of Criminal Appeal quashed the conviction and, although a new trial was ordered, a No Bill was filed. From Mr Smith's record, the description of him as a "criminal" and "gunman" are acceptable. However, without a careful reading of the text, the ambiguity of the words "he talked his way out", together with the caption leads to the conclusion that a final verdict against Mr Smith had been given by the court in relation to Mr Tidmarsh's murder. Mr Smith is entitled to the benefit of the principle that he is assumed innocent. To this extent, the complaint is upheld.

The reference to an accusation by prison authorities that Mr Smith was accused by prison authorities of running a drugs racket is drawn from the SORB (Serious Offenders Review Board) report which was to have been the basis of the story before the attack on Mr Smith. This is balanced by pointing out that no further evidence on this allegation was forthcoming, and that a later prison report referred to him as a "perfect inmate"; this aspect of the complaint is dismissed.

2. Mr Smith' right to life

Mr Anderson says the article shows a dangerous contempt for Mr Smith's life. Although it quotes from the SORB report, it fails to make clear that through no fault of his own he was given no opportunity to have his classification reduced and this was the major reason for the SORB's hesitancy about his release. There is, he says, nothing sympathetic about Mr Smith in the article. The newspaper says that a more objective assessment might be that people who associate with criminals with firearms might be subjected to their own code of conduct, irrespective of the rule of the law.

The Council believes this aspect of the article was in the area of reasonable comment based on facts and this ground of the complaint is dismissed.

3. Other factual errors

One of the alleged errors concerns the extent to which Mr Smith conducted his own defence. In one aspect there is a dispute as to the facts; the Council does not believe, if there were an error of fact, it was either intended or material or pejorative, and is dismissed.

The allegation that Mr Smith "exploited technicalities in the law to escape criminal charges" is more serious. Mr Anderson is correct in pointing out that the Court of Criminal Appeal would not regard the quashing of a conviction on apparently new standards acquired for criminal evidence are seen to be in the realm of technicalities. The accused are entitled to rely on these rules, as the article colourfully says "to exploit technicalities". While convictions are only made where proof of guilt is beyond reasonable doubt, there would be agreement as to whether the law is too favourable to the prosecution or to the defence.

Read with the caption for the photograph, these words tend to reinforce the view that Mr Smith was guilty of the Tidmarsh murder. However, this aspect of the complaint, that is the caption to the photograph, has already been upheld. As the reference to "the exploitation of technicalities" is acceptable in everyday language, this aspect of the complaint is dismissed.

Mr Anderson's final point on errors of fact is that the conclusion of the article "which asserts 'the underworld ... is much less forgiving than the world of law and order' fails to acknowledge (because of the sources relied on in the article) that the several police enemies Mr Smith has acquired over the years are also suspects for the shooting".

On this the newspaper replied that the reporter's police sources say Mr Smith and his wife pointed to Mr Smith's underworld enemies and had not hinted at police involvement. They say that Mr Anderson does not appear to have passed on any credible information on this to the authorities. The Council cannot therefore say the absence of a reference to police suspects constitutes an error of fact.

Conclusion

The Council affirms that all, including those with criminal records, are entitled to the benefit of the presumption of innocence. Care should be exercised not to leave the reader with the impression that a person has been found guilty, or is clearly guilty when the judicial system has not come to this conclusion. Subject to this, legitimate reporting should not be stifled.