Russell Brand: When time, publicity, and justice collide

The case followed a 2023 media investigation that brought allegations against Brand to international attention and encouraged women to contact authorities. At sentencing, Mr Justice Bennathan acknowledged the role of that reporting, but made clear that he would disregard the documentary allegations and the charges on which the jury had acquitted Brand. He was sentencing a man for crimes proved in court, not for every allegation made in public.

That distinction deserves more attention than it often receives. Investigative journalism can expose wrongdoing that might otherwise remain concealed, particularly where celebrity and influence discourage complaints. It can also generate a public narrative long before a jury hears the evidence. Reporting allegations is an essential journalistic function. Determining criminal guilt is not. A later conviction does not retrospectively validate every accusation or insinuation that preceded it.

Brand’s lawyers unsuccessfully argued that adverse publicity made a fair trial impossible. The defence also raised concerns about the effect of media coverage on complainants’ recollections, which the prosecution disputed. The trial judge took precautions in jury selection and directed jurors not to undertake their own research. Those safeguards were significant. But the broader question remains: how does a court protect the integrity of a trial when the allegations have been discussed, repeated and debated for years? Asking that question is not to suggest that Brand’s jury was prejudiced or that his convictions are unsafe.

Australian courts have confronted the same problem. In Dupas v The Queen [2010] HCA 20, the High Court concluded that the risk of prejudice arising from extensive pre-trial publicity could be addressed, in the circumstances of that case, by thorough and appropriate jury directions. The decision reflects justified confidence in jurors’ ability to follow judicial instructions. It does not remove the need to examine the nature and extent of the publicity, and the risks it poses, in each individual case.

Delay presents a different and sometimes more stubborn difficulty. Historical sexual offence prosecutions are often challenging to bring, but they may also be exceptionally difficult to defend. Witnesses die or become untraceable. Messages and records disappear. Memories fade or change. An accused person may be unable to retrieve a conversation, establish their whereabouts or identify someone who could contradict an allegation. The problem is not merely that an event happened long ago; it is what the passage of time has actually deprived the accused of being able to test.

There are powerful reasons why sexual offences may not be reported for years, including fear, trauma, shame, and concern about not being believed. Delayed reporting does not, of itself, suggest dishonesty. But recognising the legitimate reasons for delay does not eliminate its forensic consequences. The justice system must be capable of holding both propositions at once, even when they sit uncomfortably together.

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NSW law attempts to strike that balance. Section 294 of the Criminal Procedure Act 1986 addresses jury directions about delayed or absent complaints in prescribed sexual offence proceedings. Section 165B of the Evidence Act 1995 requires a direction, subject to its statutory qualifications, where the court is satisfied on a party’s application that delay has caused significant forensic disadvantage to the accused. Mere passage of time is insufficient. The disadvantage must be identified and assessed in the circumstances of the case.

Yet the limit of those protections should not be overlooked. A direction can explain why an absence of complaint does not necessarily undermine credibility. It can alert jurors to a genuine forensic disadvantage and instruct them to take it into account. What it cannot do is restore the missing evidence. There is a difference between recognising a disadvantage and remedying it. The former is within a court’s power; the latter may be impossible.

That is why fairness cannot be reduced to a checklist of procedural safeguards. Those safeguards are indispensable, but so is the practical ability to investigate allegations and challenge the prosecution case. The existence of a judicial direction should never distract from the question it is intended to address: whether the accused has suffered a disadvantage that matters to the testing of the evidence.

Brand’s mixed verdicts illustrate a related discipline. Four charges were proved beyond reasonable doubt; three were not. An acquittal does not establish that a complainant lied, just as a conviction on one charge does not establish the truth of another allegation. The sentencing judge respected that boundary. Public commentary should be no less careful. Brand’s convictions must be judged on the evidence heard at his trial, not on speculation about what publicity or delay might have done. The wider lessons, however, remain important for Australian criminal justice. Journalists should investigate fearlessly without assuming the role of a jury. Courts must continue to scrutinise real risks of prejudice and forensic disadvantage, rather than treating procedural protections as an automatic answer.

Fame must never place an accused person above the law. Neither should public condemnation place them beyond its protections. The court of public opinion can reach a verdict in an instant; a court of law must distinguish what is alleged from what is proved, however unpopular the person in the dock may be.

Tony Taouk is a Sydney lawyer admitted in 2005 who has contributed to publications, radio and podcasts.