On Tuesday night, some TV news bulletins showed interviews with a Mallard family member, and several, including the 7.30 Report, showed videotape of Mallard doing an electronic lie detector test.
A longer segment on the ABC’s 7.30 Report showed more of the lie detector, or polygraph, test.
Mr Fiannaca said the reliability and scientific validity of polygraph testing would be challenged later in the appeal.
Expert evidence brought by the crown would show it was “totally unreliable”, he said.
The 7.30 Report had shown extra video of the testing that had not been made available to the crown.
Mr Fiannaca said this amounted to non-disclosure of evidence by Mallard’s team.
The footage was a very important part of the evidence needed to establish the reliability of the test.
The crown was also concerned that lay witnesses yet to be called for the appeal would be influenced by the report.
The video footage had not been admitted into evidence and was not in the public domain.
He said the DPP was considering whether to take contempt of court proceedings against the TV channel concerned.
Justice Len Roberts-Smith said there was potential for the report to have an impact on witnesses.
He said: “I can think of witnesses who are uncertain about certain things.”
Justice Christine Wheeler said the 7.30 Report segment went beyond a fair and accurate report of the court proceedings.
It was emotive and one-sided, she said.
Justice Parker said the reports had the appearance of something of an orchestrated campaign.
He said it could have a long-term effect on the way the public viewed the courts.
He said: “The extremely one-sided reporting creates in the public mind an expectation that is disappointed when the court makes a decision based on all the evidence before it.
“The perception is created that the court is out of touch with the reality of the case.”
He said the question of whether any polygraph evidence would be received was open to submissions.
He said if there were any recurrence of the type of reporting seen on some TV bulletins on Tuesday night, the court would consider at least a suppression order, or the need for an adjournment.
Mr McCusker said the polygraph footage had been provided to media about a year ago by supporters of Mallard out of “desperation”.
He said it had been provided on the understanding it would not be aired until shown in court.
Mr McCusker said: “Channel 2 took the view that once it [the polygraph] was mentioned in court, that was the trigger.”