Leave the opinions to us: How Gable Tostee media coverage crossed the line
A few weeks ago, I watched two news presenters on free-to-air television discuss the arrest of a man over the death of a young woman who fell from a balcony in Queensland.
The accused was Gable Tostee. The victim was Warriena Wright. The two had met via Tinder, a social media dating app.
The on air discussion went a bit like this:
Q: So, I understand police have released details about the case. What can you tell us?
A: Well, there is a transcript of a recording of the three hours before the victim died. I’ve read some of it and it is chilling, I felt chills when I read it. [She then went on to explain more of her physical reaction.]
It seems that a mobile phone found in the accused’s father’s car contained over three hours of recorded exchanges between the accused and the victim before her death (see article here).
The presenter then explained what gave rise to her physical reaction. According to the presenter, the victim became increasingly placatory as she became more fearful, there were noises as the accused sought to choke her, and then a fading scream as she went over the balcony. In an accusatory tone the presenter described how within minutes the accused had sought to call his lawyer. And then he had ordered pizza.
For the million or so potential jurors watching this exchange, the viewer was left in no doubt that details had been revealed of a particularly callous murder by a cold-hearted predator.
The water cooler nature of the above exchange was particularly striking. This was a long way from a ‘fair report’ of police allegations. It was the kind of “he must have done it” conversation one might have with a colleague in the tea room.
Presenting prosecution argument as fact
The conversation between news presenters occurred without context. We only knew half the story. For instance, we were not told that the presenter was drawing on a police affidavit filed in the Supreme Court of Queensland for the purpose of opposing the accused’s bail application. The prosecution wanted the accused man to remain in custody, so the affidavit came with a point of view.
A report in the Gold Coast Bulletin illustrates the argumentative nature of the affidavit. According to the affidavit, the accused “taunted” the victim as she struggled for air. Further, the accused did not later simply eat pizza around police as they set up the crime scene. Rather, he “casually” ordered and ate the pizza.
One would like to think that a core function of the newsroom remains the task of actually telling viewers what happened. Viewers form the opinions. This certainly did not happen here. Instead, the police prosecutor’s opinions became the basis for even more opinions supplied to us by the media.
The true facts
Made worse for the accused was that the police affidavit was apparently selective and incomplete.
Several days later at the bail hearing itself, the entire contents of the “secret recording” were tendered to the Court (full transcript here). This revealed a very different story.
Further facts revealed at the bail hearing included:
- The victim might well have assaulted the accused in a violent sexual encounter. According to a police analysis, the mobile phone recording reveals hitting sounds and rocks possibly being thrown, a male voice complaining of being beaten up, a woman boasting of being a “ninja” and telling him: “Are you going to f—— untie me because I will f—— destroy your jaw” (source here).
- A medical report found numerous marks and scratches on his body.
- The accused was not on the balcony when the victim fell, but had returned inside.
- The accused contacted his father almost immediately for help.
- The accused denied to his father any wrongdoing: “Me and her had sex and it was like, the more that she drank, she just got more violent for some reason. I can’t remember what I did but I absolutely did not throw her off my balcony. I would never do anything like that.”
Further, it appears the accused had previously been diagnosed as being on the autism spectrum (report here). The judge considered this relevant (e.g. it might explain the socially inappropriate behavior of ordering pizza). In fact, the judge has required further investigation of this issue and will then revisit the bail application.
That the accused was not on the balcony when the accused fell is a critical issue.
So much so, the judge reportedly observed that the case for murder appeared difficult to prove, but that there was a reasonably strong case for manslaughter.
Yet, despite this much more complex scenario, has the well of “innocent until proven guilty” been poisoned by the earlier reports?
Reported facts in context of bail hearing
Let us now add a few further facts. First, excerpts of the transcript were released prior to a bail hearing.
A bail hearing is an administrative hearing where the rules of evidence need not apply. Its only purpose is to determine whether the accused might abscond. If there is a risk the accused might fail to appear at important court dates, then the court might decide he or she should remain in custody.
The more serious the charge, the more likely the accused should remain in custody.
The inquiry concerns a range of factors, in which the strength of the case is one. If the prosecution’s case is weak, the court will consider whether a person should be locked up (often for more than a year given one must have a committal hearing before the trial) if there is a genuine chance he or she will be found not guilty.
Therefore, a transcript of a recording may be relevant to bail. However, it is by no means certain such a recording could be admitted at trial.
The accused’s criminal history may also be relevant to a bail hearing but not admitted at trial. Now thanks to the media, Gable Tostee’s criminal history has also been reported to the public.
Questions arising from media treatment of Tostee
It is not altogether clear how the police affidavit was released to the media.
Gold Coast Detective Superintendent David Hutchinson said:
“It was not released by the police and we were not impressed that the details were broadcast in the media. It potentially jeopardises a fair trial in the future.”
Mr Terry O’Gorman, the Australian Council for Civil Liberties president, said the public release of the affidavit was “absolutely worrying” and “an unattractive development” which could skew the course of justice.
He said the publication took away the ability of the defence to request a suppression of argument, given details were already in the public domain.
These are all legitimate complaints. However, they do not detract from the fact that the media had a choice about how to report this subject matter once the affidavit came into their hands.
For instance, a journalist could investigate the purpose of the affidavit and its intended use. Comment could be sought from the parties’ concerned (including solicitors for the accused). The aim would be to provide a balanced and fair report based on the contents.
Next steps for Tostee
Meanwhile, Gable Tostee, despite being within the confines of Arthur Gorrie Correctional Centre, protests his innocence… via Facebook.
The Social Litigator 
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