Perhaps they made a deal about what could and what should not be reported. The media, for example, has been largely incurious, in public at least, about the sequence of events from the time the suspect is said to have met the victim until he is said to have buried her - although, within 12 hours of the arrest, media were confidently stating that the suspect had led police to the shallow roadside grave, the location of which was told to the media, and, quickly, to the public. (It is now, like the shop from which video-footage was published, bestrewn with flowers from people greatly affected by the murder.
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The suspect was soon before the courts, and, soon after, his name emerged. Within minutes, those who Googled it were able to find old newspaper reports suggesting that the man charged had previous convictions for violence and sexual assaults. Anyone could have discovered this, but just in case, Australia's most popular blog site was operating as a signpost.
By the time that police, and, soon, the husband of the murdered woman, appear to have realised that the social media explosion had the capacity to prejudice any possibility of a fair trial for the man - who had long been tried, found guilty and at least by opinion poll sent off for execution by the blogosphere - it was a little bit late. A Melbourne citizen unaware of what was going on is not, frankly, the sort of person that prosecutors or defence counsel would want on a jury. A person who had not heard something potentially disqualifying in the past two weeks would be rather like a person who had not known, in 1980, that Lindy Chamberlain's baby went missing, or, in 1963, that President John Kennedy had been assassinated.
Photographs of the accused man, on top of the usual demeaning images of a cowering man attempting to cover his head in a police car (thoughtfully stopped near media cameras) have been published. It is quite possible that questions of identification of the accused man will be important at trial, as will questions of whether he ''is'' the person in the closed circuit television images, or was the person that any number of women have now alleged approached and importuned them. If the man pleads not guilty, counsel will ask witnesses if they are not remembering something they saw on a particular night, or the image they have since seen in the media.
One can also use Google, or news sites, or any number of other sites to find out any detail or opinion on which one is deficit. If, moreover, there is some fact one has forgotten during an argument about the case at the pub, or in the jury room, you can ask your smartphone for all the details, not least the opinion of thousands that hanging, or a fair trial, is too good for the brute.
In all but one respect, indeed, it rather reminds me of the case of Henry O'Farrell, a somewhat crazed alcoholic Irishman who, on March 12, 1868, shot Prince Alfred, Duke of Edinburgh, in the back at the Sailor's Picnic in the Sydney suburb of Clontarf. The bullet was deflected by some metal in the duke's braces. Henry Parkes, NSW Premier and one of the great fathers of sectarianism in Australia used it to stir up anti-Irish sentiment, with a march of 20,000 demanding action against the Fenians the next day. O'Farrell was tried on March 30, fewer than three weeks after the shooting, and convicted the same day, a plea of insanity having been rejected by the jury. He was hanged 40 days after his crime. Our Melbourne man might think he should be so lucky.
The threat to a fair trial of the Melbourne man goes well beyond the damage already done, including by police, journalists and officials now agonising how much justice has already been compromised. Does it open the floodgates for a new era in which the balances between fair trials and freedom of expression, or the sub judice rule, have completely changed?
If experience is any guide, the potential jury panel has already been heavily influenced. The actual panel will be told, firmly, by the judge, prosecutors and defence counsel to concentrate only on what they have been told in court, and to ignore gossip, things they have heard or read outside the court, and to refrain from using social media during the trial. They will also be told to shut up about jury deliberations. Most jurors will be fairly conscientious about doing all of that. But some will not be able to help themselves - even in court. There are already reported cases of jurors using Google and Wikipedia to ''clear up'' questions about facts or sequences, or the meaning of words lawyers are using. There have even been cases of jurors tweeting to friends during a trial (only those who have ever been in one understand how tedious a trial can be, and how tempting this might be); other cases of jurors blogging during trials, or diarising trials and deliberations in Facebook. These have included lively remarks about the dopiness of the trial judge, sexiness of a prosecutor, tediousness of defence counsel, or the ugliness and obvious guilt of the accused.
Jurors (and spectators and sometimes counsel) have used mobile phones to surreptitiously photograph, videotape or record evidence, witnesses and documents. Others have used message systems to find and electronically approach witnesses, or sometimes even the accused.
Up to a point, judges can forbid the possession of electronic devices in court or jury room, and, if needs be, sequester a jury. Increasingly, however, they are fighting an irresistible tide, with dubious powers. (A judge can punish a person for using a computer or phone to disclose jury deliberations, and to punish the use of any device which has the effect of interfering with the trial or intimidating a witness).
But I do not believe that it is, these days, within the power of a judge to ban the use of electronic note-taking equipment by anyone (including jurors), or having phones or other communication devices. Contempt in the face of the court is not a matter of offending a judge's sense of her omnipotence but of disrupting a trial.
Lawyers often tell jurors that they do not have to leave their common sense behind. If so, it may not even be right that jurors should be unable to consult a dictionary, take their own notes, or demand their own copies of transcripts. A good many tried-and-true rules designed to keep material from jurors were made in an age when most jurors were, at best, only semi-literate. In an average case these days, a quarter of the jury is better educated than judge or counsel, and deserve more respect.
Any attempt to set particular rules for equipment will be almost immediately outmoded by fresh invention. Pandora's box is open and we must (alas I think) live with the new reality.
That takes us somewhat closer to the United States, which has never had much of a sub judice rule, but which has had, in part as a consequence, to think more often of how prejudice can be undone.
Some will say that we must, down the track, get rid of juries and have only professional fact finders, or trial by judge alone. Constitutional difficulties, here and in the US, aside, this creates fresh problems: I have never seen any evidence that judges are better at resolving facts than juries, or that judges are more easily able to resist popular enthusiasms and panics.
Jack Waterford is The Canberra Times' Editor-at-large.
