Law and human dignity

Law and human dignity

Cassie Sainsbury’s trial by media

EPA

The highest-profile Australian currently imprisoned overseas, Cassie Sainsbury, is detained in Colombia on drug charges. She was arrested at Bogota airport in April with 5.8kg of cocaine in her suitcase.

This week a planned preliminary hearing was suspended until October 20, when the prosecution may formally present its charges against Sainsbury. A trial date has not been set and is at least six months away.

Sainsbury’s case has attracted abundant media attention, as did the case of Schapelle Corby. But the attention is not serving Sainsbury’s interests or the interest of justice.

Much of the commercial media coverage and social media commentary on Sainsbury’s case has been sensational and prejudicial. With each new “revelation”, Sainsbury is again convicted in the court of opinion, despite the fact that she is awaiting trial in a court of law.

Considering the case through a human rights lens, it is difficult to judge much of this coverage as anything but exploitative of a young person in a very difficult situation. Little care is being shown for the damage prejudicial commentary could do to Sainsbury’s prospects at trial or life after prison.

60 Minutes and ‘Cocaine Cassie’

On Sunday evening, Channel Nine program 60 Minutes broadcast an “exclusive” interview with Sainsbury.

The interview was heavily editorialised by reporter Liam Bartlett. Sainsbury was criticised for smiling “inappropriately” and told by Bartlett that her story was filled with “porkie pies”. 60 Minutes also alleged that Sainsbury had previously lived a “double life”, commuting from Adelaide to work as a “prostitute” in a Sydney brothel (a claim she denied).

60 Minutes juxtaposed Sainsbury’s alleged sex work with her current circumstances in a way which unfairly denigrated both Sainsbury and sex workers more generally.

A subsequent Daily Mail article quoted “body language expert” Michael Kelly, who said Sainsbury’s movements during the interview suggested dishonesty. Kelly said Sainsbury looked “playful” and like she was “enjoying the limelight to a degree”. The Daily Mail also quoted social media commentary from unnamed sources to the effect that Sainsbury appeared smug and a"‘bad liar".

Such “reporting” echoes coverage of Lindy Chamberlain’s trial-by-media. Chamberlain’s guilt was prejudged by many and then unfairly judged by a court.

The “inappropriateness” of Chamberlain’s responses, including the fact that she was not seen to cry publicly to a sufficient degree, were cited as evidence that she was unfeeling or lacking remorse for killing her own child. Chamberlain was convicted in 1982, sentenced to life imprisonment, spent three years in jail, and was finally exonerated by a royal commission in 1987.

The prejudicial nature of the 60 Minutes program was revealed in Bartlett’s narration. He acknowledged that Sainsbury’s prospects rest heavily on her credibility as a witness, yet claimed that “her case has been mired in misinformation and lies from the beginning”.

This report and voluminous similar commentary is now freely available online and is heavily prejudicial to the ongoing criminal case against Sainsbury in Colombia. Much as the case is regarded as of public interest, it is not for the media or the public to judge Sainsbury’s guilt.

Why would Sainsbury participate in such a portrayal?

Some have questioned why Sainsbury agreed to participate in the interview. At least two reasons suggest themselves – a need for funds and a desire to salvage her reputation.

Channel Nine have admitted funding Sainsbury’s mother’s travel to Colombia in exchange for the interview. Sainsbury is no doubt in a position of financial strain, with legal fees to pay and significant costs to meet if she is to have family support at points during her trial.

If convicted, Sainsbury will serve a prison sentence in Colombia and then be obliged to serve her parole there. During that period, she would not likely have access to work or social support, meaning her expenses may continue for decades.

It is also understandable, considering the damning nature of the commentary to date, that Sainsbury would seek to ameliorate damage to her reputation. As she told 60 Minutes, she wants to return home and rebuild her life. She also asked others not to judge her guilt without knowing all the facts of her circumstances.

It now appears that Sainsbury may have been better to refuse the interview, considering that 60 Minutes portrayed her in such a prejudicial light. But it is important to remember that she had little control over that portrayal, and she is in an extremely precarious and stressful situation.

What next in the legal process?

In August, at Sainsbury’s last court hearing, the judge rejected a plea deal negotiated between the prosecution and defence. A month prior, Sainsbury claimed before the court that she was coerced into carrying the drugs by death threats to her family and fiancé.

The judge could not approve a guilty plea without determining whether this claim of coercion is true. If Sainsbury was coerced then she cannot have had the necessary intention to commit the crime and should not be convicted.

In the 60 Minutes program, much was made of Sainsbury’s claim that she has photo evidence on her phone to prove the death threats were made, but that this evidence is inaccessible because she has forgotten her password.

According to Bartlett:

I don’t know another millennial who has forgotten their password.

Bartlett’s conclusion is hardly scientific, but its damning implication is very clear.

The coverage of Sainsbury’s case has been driven by competition between commercial media outlets. Minimal consideration has been given to Sainsbury’s fundamental human right to a fair trial.

Future reporting ought to be more mindful of the obligation on media outlets to protect the presumption of innocence and acknowledge Sainsbury’s right to a fair hearing of relevant evidence by an impartial court.