Former St Kilda footballer Andrew Lovett, acquitted of r-pe charges in Melbourne on Monday, faced not just judgment by a judge and jury but a trial by media.

The Herald Sun ran a front page on Tuesday with the headline’s “What the jury was not told: Footballer’s r-pe case secrets revealed”.  The Age was characteristically more circumspect but still had a front page story talking about materials and “evidence” that was not put to the jury in Lovett’s trial.

Both newspapers focused on a prosecution submission during the trial, heard by the judge in the absence of the jury, in which it was alleged that Lovett rang a woman and had s-x with her some hours after the incident that led to the r-pe allegation being made.

The Herald Sun’s story ran extracts of the court transcript in which prosecution and defence counsel argued for and against the jury being allowed to hear about the phone call and s-xual liaison.  The Age also focused on the fact that “jurors were not told of Lovett’s prior conviction for breaching an intervention order taken out against him by a former girlfriend”.

Argument had by lawyers in court without the jury being present are not allowed to be published before or during the trial of a person.  And up until now it has been rare for media outlets to publish such arguments after a trial is completed.

The Lovett case sets a dangerous precedent on several levels. First, there is a real danger that pre-trial argument about admission of evidence will be reported in a misleading way. For example, we do not know the circumstances of the alleged breach of the intervention order to which The Age referred. Ditto the allegation that Lovett called another woman and that s-x took place.

The danger of misreporting of pre-trial argument about evidence was seen in the aftermath of the 2008 Melbourne terrorism trial when the Herald Sun ran a front-page splash about blowing up the West Gate Bridge. The conversation from which this story came did not say this at all, and the conversation was never used in the trial.

The second issue is that allowing the media to report on “evidence” and materials that a judge rules inadmissible after a very careful consideration of the arguments of prosecution and defence and after considering the material him or herself, undermines the integrity of the trial process. The Herald Sun’s headlines yesterday may give the impression to the reader that the jury was not told the full story.

Finally, and perhaps most insidiously, the publication of pre-trial argument about evidentiary matters might in some cases allow the media to give the impression that while a person was acquitted, they are not necessarily innocent.  That is the ultimate form of trial by media.

Pre-trial argument about evidence should remain suppressed from publication. The media might howl at this, but the interests of the fourth estate in publication of such material is far outweighed by the need to ensure that a person who is adjudged not guilty by a court remains, as they are entitled, innocent of the charges on which they were tried.

*Greg Barns is national president of the Australian Lawyers Alliance