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Report No. 200

(4) Photographs:

Apart from publication of photographs interfering with the procedure of identification of the accused, there is also the likelihood of such publication giving a colour of guilt with added emphasis. In AG v. News Group Newspapers Ltd: (1984) 6 Crl App Rep (S) 418, the Sun Newspaper published, on the second day of trial, a photograph of a man who was charged with causing serious injuries to his baby and the baby's mother was also accused of the offences.

The caption was "Baby was blinded by Dad". This allegation was not part of the Crown's allegations. Stephen Brown L.J said that "the juxtaposition of the photograph undoubtedly carried with it the risk that the accused, who had pleaded not guilty, might be regarded in a very unpleasant light by those who saw this particular photograph and headline". Sun admitted contempt and was fined 5000 Pounds.

In New Zealand (see Chapter V of this Report), in Attorney General v. Tonks: 1934 NZLR 141 (FC), it was held that publication of photographs of an accused before trial if the identification was likely to be in issue would amount to contempt. Blair J observed:

"If a photograph of an accused person is broadcast in a newspaper immediately after he is arrested, then such of the witnesses who have not then seen him, may quite unconsciously be led into the belief that the accused as photographed is the person they saw. The fact that a witness claiming to identify the accused person, has seen a photograph of him before identifying him, gives the defence an excuse for questioning the soundness of the witness's identification".

We have also referred (see Chapter IV) to the NSW case from Australia in Attorney General (NSW) v. Time Inc Magazineco Ltd: (Unrep. CA 40331/94 dated 15th September 1994) where the weekly magazine 'Who' published the photo of Ivan Milat, accused in a serial murder case, in the front page after his arrest and Gleeson CJ observed that this would seriously interfere with identification by witnesses when the person is lined up with others. It could be strongly argued for the accused that

"that the identification in the line-up was useless, or atleast of very limited value. It would be argued that, because of what is sometimes described as displacement effect, there was a high risk that at the time of the line-up, the witness was performing an act of recognition not of a person who had been seen by the witness on some previous occasion but of the person in the photograph".

In R v. Taylor: (1994) 98 Cr App Rep 361, there was a charge of murder against two sisters for the murder of the wife of the former lover of one of them. Some newspapers obtained a copy of the video made at the deceased's wedding and froze a frame from the sequence of guests emerging from the church, kissing first the bride and then the groom, so that it appeared that the 'peck' on the cheek given by the accused to the groom, her former lover, was a mouth-to-mouth kiss. This photograph was accompanied by the headline 'Cheats Kiss' and 'Tender Embrace - the Lovers share a kiss just a few feet from Alison'. On account of the prejudicial publication, the Court of Appeal quashed the convictions and did not order a retrial.

Trial by Media free speech and fair trial under Criminal Procedure Code, 1973 Back

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