Walker, Sally --- "The Courts, Parliamentary Priviledge and the Media" [1999] UTSLawRw 12; (1999) 1 University of Technology Sydney Law Review 82

Court Radio Cometh

Susannah Lobez
"The Law Report", ABC Radio National*

In recent years, the debate about whether court cases should be televised has raged--at legal conferences, in academia and in the media itself. It was great fodder, juicy issues about "public interest", "open justice" and "the rights of the accused to a fair trial" all up for grabs. Protagonists and opponents armed themselves to the teeth with analysis, expert opinion and at a pinch, anecdotal evidence about the dangers of the media inside the courtroom.

Of course print journos have always been in there, scribbling away with their quills and ink, entrusted by the courts to go away and write up a fair account of the case (and the judge's sometimes poorly chosen phrases!). We'd also had the odd broadcaster (including this one) get into a court to film or tape material to be used in various docos or current affairs features.

In 1995, the Victorian Supreme Court's Justice Bernard Teague put a tentative (but brave) toe in the water of "Court TV". He allowed a camera to record the sentencing of a confessed child killer (Avent). It was hardly gavel-to-gavel coverage, but it created a storm of controversy, provoked some unkind aspersions about Justice Teague's motivations and polarized public and legal opinion about the merits and evils of allowing cameras into courts.

Among the concerns expressed by those opposed to cameras in courtrooms were:

• it will turn court cases into entertainment;
• it will invade the privacy of the accused and his family;
• it will make judges, counsel, witnesses and juries self conscious or tempt them to perform for the cameras;
• coverage will be sensationalist and superficial, squeezed into two minute time slots;
• it may prejudice the fair trial or hearing, which ultimately is the goal of the courts.

The finale of the OJ Simpson criminal trial put the big boot on any court television prospects in Australia for a while at least. It wasn't actually what the camera in the courtroom recorded and presented which seemed to offend most people. It was the circus, the media feeding frenzy--constant commentary, media operators interviewing each other, speculation on evidence or argument put by counsel--all the kind of things which would make most Aussie lawyers think of the "Big C"--contempt.

Amid all this (and working on the premise that you "love the one you're with" and I'm with radio), I decided to have a go at "Court Radio"! After all, radio is an ideas medium, often less frivolous and superficial than telly. It lends itself to "infotainment". Radio will keep the audience from being distracted by the defendant's mother snivelling in the second row or the judge's funny looking wig and gown or the tipstaff dozing off. Counsel and judges won't be tempted to ham it up as they won't even be conscious of an audience, microphones already being on the bar table. Radio allows more focus on the issues and the argument than the personalities and appearances.

The judiciary and the media often seem suspicious of each other. It was going to take some diplomacy so I decided I'd try to be the intermediary. I put out the word that I was looking for some sensitive new age judges (SNAJs) to be part of this experiment and that I wasn't out to get 'em.

The South Australian judges proved receptive. The Chief Justice could say "yes" till he was blue in the face but what if when we found a case to record, the presiding judge said "no" or the defendant himself pulled the plug? Chief Justice Doyle and I, together, drafted a letter explaining the project and seeking the consent of litigants and their lawyers. His Honour and the Chief Judge of the District Court of South Australia provided a written endorsement of the project and I worked on the guidelines to cover the recording of a case.

It was then a question of finding the right case to record and getting the consent of all involved. After some false starts--judge, prosecutor, defence counsel, witnesses and defendant all agreed to allow recording of a case of alleged "possession of cannabis for sale". It was heard (and recorded) before judge and jury in the Adelaide District Court late in November 1996.

The Crown case was that the accused, having in his possession some 4.2 kilograms of cut cannabis and a 2.5 metre, silver-headed cannabis plant in his garden, had more than he was allowed to have for personal use (100 grams). Unless he could prove otherwise, he was deemed to have cannabis for sale (which carries pretty hefty penalties.)

The accused's case was that he was a habitual user of cannabis and smoked it as a kind of medication. He had grown a small crop of cannabis every year for over 20 years for his own personal use. Along the way, he had become a bit of an amateur geneticist. Despite failing grade six several times, he had experimented with the pollination process and developed unusual protein combinations to feed his plants.

"...I figured why should I feed a plant a bowl of chook shit...I wouldn't eat a bowl of chook shit...It's better with amino acids and proteins..."

Q. "What do you add to your plants?"

A. "Beer, malt, brewers yeast, eggs, bananas...I make it into liquid fertiliser and pour it onto my plants...and my chemistry works, the root structure is f...ing astronomical!"

This very first experiment with "Court Radio" was heard on Radio National's "Law Report" on Tuesday, 4 February 1997. Listeners were able to consider their verdicts after hearing both sides of the case and the following week the jury foreman delivered the verdict in the case. Another example of "courtus interruptus".

Since the Law Report's first foray into "Court Radio" which aired in 1997, a number of discussions have taken place to try to produce a court radio documentary in other jurisdictions. Several judges seem willing, in a range of courts, but for a variety of reasons we haven't yet secured a recording opportunity.

So "Court Radio" is now a happening thing, on Radio National at least. Listeners will be taken right into the court for the trial. They may feel sort of like the thirteenth juror and will hear an abridged version of the case.

The South Australian judges and court staff have facilitated another recording opportunity of a Commonwealth prosecution of a person who was charged with arranging a marriage to circumvent immigration law. It was a longer trial than previously thought and we hope it will be edited and broadcast some time in 1999.