In 2007 the Solicitor General made the following public directive regarding the Bain case:
"I want to emphasise that in our system of justice, it is a jury which determines guilt or innocence in a case such as this. The jury reaches its decision after it has considered ALL the evidence and after receiving directions on the law from the trial Judge. Guilt or innocence of an accused person is not decided by the media or public opinion polls.  Those who attempt to usurp or try to influence the trial process risk facing a charge of contempt of court."

This statement was made in relation to the rule of sub judice, which is a rule that exists primarily to protect those individuals participating in legal proceedings from being influenced by public discussion, most often in the traditional media.  Included amongst the people beng protected are the jury.  If, prior to a trial, a prominent commentator writes an editorial about how the defendent in an upcoming trial is a murderer and a fiend, then that is considered a breach of this rule and a prosecution may be forthcoming.

Indications of jury misconduct in the 2009 retrial

There are some who argue that research indicates that juries are seldom if ever influenced by media events and that freedom of expression should hold the trump card, for instance Michael Guest.  Obviously all of this can be discussed and argued and discussed and argued again, but by relying on research, we are giving research the power of judgment which should be in the hands of the jury.  Regardless of what some people's research says, when a trial has been announced it would seem to me that there is nothing to be gained by the public in knowing anything about the trial except for relevant dates and personalities involved, and then, as the trial unfolds, responsible reporting of events.  In my opinion then, the reprinting of David and Goliath in 2007 in light of the sub judice rule AND the Solicitor General's directive, was a violation of sub judice. 

The Solicitor General considered the reprinting of David & Goliath to be "extremely irresponsible"

The Solicitor General considered taking Karam and his publisher to court for contempt for reprinting the book, but refrained from doing so largely because of a precedent that had been set in Solicitor General vs Fairfax 2008 which led him to decide that the threshold for contempt in such situations was too high to be worth proceeding.  Key to this was the consideration that two years between publication and trial date is too long a time for influence to take place.  Subsequently this case was never actually tested in court.  However, the reprinting of David and Goliath differs from the Fairfax case in a number of ways:

1. A book, unlike a newpaper article has a much longer shelf life and therefore the same two year duration has different meaning with a book.
2. A newspaper is for sale for one day only.  Conceivably a book reprinted in 2007 could still be for sale in bookshops during a retrial 2 years later, with sales helped possibly by publicity surrounding the retrial.  A jury member could walk out of court during the trial into a bookshop and see the book displayed clearly on the feature stand.
3. The book David and Goliath had already been in print and was available in libraries, so there was nothing new to be gained for the public in having it reprinted.  In other words there would have been no suppression of the public's "right to know" by not reprinting the book.
4. The author of the book subsequently took up a key role in the court room in full view of the jury.

Therefore the case for violation of sub judice should be stronger in this case.

If anything needs to happen in the current Minister of Justice's efforts to improve our Justice system, then we need to clarify and confirm sub judice rules and their purpose and make them enforceable. The Bain case sets a worrying precedent for future instances of Trial by Media.

I might add that David and Goliath did cop it for publishing the name of a witness who had name suppression in relation to the retrial (but obviously not the original trial since this person's name appears in the book).  And for breaching a suppression order, the punishment involved a written apology to the person in question.