Keyzer, Patrick --- "What the Courts and the Media Can Do To Improve the Standard of Media Reporting of the Work of the Courts" [1999] UTSLawRw 19; (1999) 1 University of Technology Sydney Law Review 150

Access to the Courts and its Implications

The Honourable Justice Bernard Teague

Justice of the Supreme Court of Victoria

It's time the electronic media engaged more with the courts about increasing its access to the courts. It's time the courts engaged more with the electronic media. It would be easier if the print media were to be left out of that engaging.

I have spent most of this year presiding over trials of accuseds charged with murder. Here, two points of relevance have been brought home to me in that time. The first is that at present, the electronic media requests are easy to say no to. The second is that, while the courts are using the new technologies, they are shunning the media that uses the new technologies. During the year I have made various orders affecting the media. I have also delivered the occasional warning. At one time, I even made an order denying the public access to my court. That was after a telephoned death threat, and I did except the press. I have made at least one suppression order limiting what the media can print or put to air. I have warned persons, whose actions might have prejudiced a fair trial, of the possibility that they might be dealt with for contempt of court.

During most of the year, I have had two video cameras in my courtroom. It is state of the art technology. The cameras were in use yesterday to enable evidence to be taken in Melbourne from a doctor in Canberra. There was no possibility that what was recorded would be broadcast.

During the year, I have had a number of requests from court reporters put to me in my chambers. I have had no requests to permit the use of a video camera. The reporters are aware that the answer would have to be "no". Tape recorders are a bit different. Some years ago, I approved the use of tape recorders when I am handing down a sentence. However, I only allow such use by reporters who undertake not to broadcast the tape. I have had requests for the use of a tape recorder with part of the tape being broadcast. The answer to date has been "no". I have also had requests to make myself available for interview. The answer to date has been `no'. Whenever I am asked to clarify orders affecting the media in court, I do so.

Generally, my polite declining of requests made to me in chambers is done through my associate or the Courts' Information Officer. No reporter has yet asked that I treat a request as more than a polite request. That is, as an application to be dealt with in open court. I assume that this position is the same with other judges. I am suggesting today that it might be time for that kind of move to be made. I would much prefer that it be made in some other judge's court.

Such an application would have to be taken more seriously if the right preparation were taken. If the right kind of collective action were to be taken, there are potentially major gains for the electronic media. Let me outline what I have in mind with reference to developments in three other areas of access by the media to the courts. I will then come back to the position of the electronic media.

The first area concerns suppression orders. Courts often make orders restricting what can and cannot be published in the media. Such orders may relate to the closing of the court, the suppression of names or the suppression of evidence. Thirty years ago, when I started out as a media lawyer, there was a resigned acceptance by reporters that such orders would often be made inappropriately. Sometimes it would be enough, for some judges, that counsel made the request and there was no opposition. Nowadays, if opposition is warranted, it is much more likely that opposing views will be presented to the court.

In Melbourne, between the early 70s and the late 80s, Tony Smith (now Judge Smith) and I acted for clients in the print and electronic media. However, our instructions to challenge the inappropriate making of suppression orders generally came from the print media. It is my opinion, albeit unsupported by any hard evidence, that there has been a considerable reduction in the volume of inappropriate orders over the past 30 years. There has also been a continuing refinement in the terms of such orders. More attention is now paid to the criteria in statutes, to making orders which are focused rather than being overly broad and to providing for time limits on the operation of orders. This is an area where Court Media Liaison Officers can, and do, make an invaluable contribution. With continuing vigilance, there should be even less likelihood of orders being made, in the future that are inappropriately restrictive.

The second area, which is linked to the first, relates to standing. When I started out as a media lawyer, there were problems establishing that the press had standing to put its position as to suppression orders. Court reporters just gritted their teeth and "lumped it" when a suppression order was made. There then came a period when a decision of Lord Denning, supporting the standing of the media, was much flourished. A disgruntled reporter called the editor. The editor called the solicitor. The solicitor rushed to court. The judges had to listen to a different perspective. Today, no judge would challenge the right of journalists to be heard by the courts on issues affecting publication. Reporters should be encouraged, and perhaps trained, to do so more often. There are still issues as to standing to be resolved relative to tribunals, but they can be considered on another occasion.

The third area is that of contempt of court. The basic principles of the law as to contempt have not changed. There are continuing concerns on the part of journalists about the uncertainty of how the law impacts on their work. As a media lawyer, I shared that concern, if only because at times journalists were effectively setting me up as the person who would have to be answerable if there was a contempt. This is one of many areas where there is fascination in the different approaches in New South Wales and Victoria. There has always been much more "remedial" work for media lawyers mopping up after gung-ho writers and broadcasters in Sydney than in Melbourne.

In Victoria there have been significant changes in legislation since our most recent notorious case. That was when Derryn Hinch chose, in 1986, to broadcast Michael Glennon's convictions not long before he was due to stand trial. Fewer prosecutions have been initiated since the power to do so was taken from the DPP in 1994. In my opinion, the appointment of a Courts' Information Officer is the single most important reason why contempt is much less of a concern in Victoria these days. I can only think of one recent prosecution. That was after the Brian Quinn (Coles-Myer) trial, which did result in convictions and fines of a journalist and publisher. The John Elliott trial might have caught out our beloved Premier had he not chosen to go into Justice Vincent's court and apologize. Generally, the changes which have been made, at least in Victoria, can be seen as having, for journalists, increased capacity to be critical and reduced the risk of being dealt with for potential transgressions.

The fourth area concerns the practices and policies of the courts in relation to the use of equipment such as tape recorders, still cameras and video cameras. It is about sound and vision. The courts have adapted relatively readily to the use of new technology where it improves the quality of trials. I mentioned earlier the use of video cameras for taking evidence from witnesses in remote locations. Computer screens and lap tops sit on the Bench with judges as well as on the Bar Table. In one of my recent murder trials, a long one, the jury asked for its own computer so that members could keep summaries of the evidence. After taking certain safeguards, I arranged for a computer to be provided.

However, the courts have adopted a very different attitude to the use of any kind of replacement for the journalists' pen. Some courts have experimented with practices devised to provide better access to electronic media court reporters. Most have opted to act very conservatively.

Before I proceed further, I would raise a caveat. I have avoided any public or semi-public comment on the subject of television in the courts for the last three years. The main reason for that lies in the ethical restraint against a judge commenting on any decision beyond the reasons handed down at the time. I intend to hold to that line so far as what I did and said in 1995. However, I feel only a little restricted now in commenting about what the future course, as to televising the work of the courts, might be. It seems to me that, in the last three years, there has been a shift away from whether the work of the courts should be televised. The debate is now how should televising be regulated?

I also think that the release in August of a report from New Zealand will help us in Australia to focus more clearly on the issues that now have to be addressed. The report was on "Media Coverage of Court Proceedings". It dealt with trials over the last three years of guidelines for such coverage devised by the courts in New Zealand. That report makes very interesting reading. Of significance is that both the Chief Justice and the President of the Court of Appeal have been quite heavily involved in the work of the Consultative Committee. Also significant is that the Committee has had its work "backed up" with market surveys.

One matter addressed in that report is of particular relevance here. It concerns the significance of the electronic media, as against the print media, as a source of information about the work of the courts. The recent Australian Institute of Judicial Administration study on "Courts and the Public" written by Professor Parker, referred to two studies, one in the United States and one in Queensland. His comment on those studies was that they showed that the majority of the general public receives its information about the court system through the electronic media. The New Zealand report also started with the premise that the newer forms of media are the primary means by which the public now receives information. Professor Parker went on to make two further comments. The first was that there must me a strong argument for employing the electronic media more fully in disseminating information about the courts. The second related to the need for appropriate guidelines and safeguards.

There are various indications that the courts might be likely to encourage greater access in the near future. More judges in more jurisdictions are accepting that there is a need to build the level of confidence that the community has in the work of the courts. Sir Gerard Brennan, in a lecture he gave in Ireland as Chief Justice, said: "...the courts should facilitate media access to whatever is on public record or in the public domain".[1] There are various signs that some judges may be becoming less reluctant to explain the work of the courts through the media.

An example of how it can be done superbly was the interview in 1996 of Gleeson CJ on "Lateline" explaining principles of sentencing. Other examples which went to air this year were "The Highest Court" on the ABC and Davies JA from the Queensland Court of Appeal on the "Sunday" programme. For some years the two Chief Justices who have spoken today, Chief Justice Doyle from the Supreme Court of South Australia and Chief Justice Black from the Federal Court of Australia, have been supportive of measures aimed at better informing the community of the work of the courts. Three months ago, Sir Ninian Stephen gave further impetus towards change. He urged the High Court of Australia to consider measures which included permitting the televising of its proceedings.

Various measures could be taken to attempt to achieve or accelerate further change. I suggested earlier the potential value of some collective action on the part of electronic media reporters. The courts might be pressed to define their practices as to various aspects of access by the media. Where avenues are opened, the media might devise ways of making optimum use of them. It may be difficult to imagine some courts publishing any policy statement in this area. A more particular approach might be better than a general one.

Some courts do have guidelines for particular situations. I cite the Supreme Court of South Australia guidelines for radio. That might provide a good starting point. Why not take the South Australian guidelines to the Federal Court and politely ask that they, or similar guidelines, be approved and implemented in that Court or that reasons be given why that should not be done. If the Federal Court could be persuaded to accept the South Australian guidelines on radio, pressure could be put on other courts around the country to do likewise. Perhaps early next year, the New Zealand television guidelines will be available. They will be freshly "polished up" after four years of extremely thorough piloting and consultation. What better place to urge that they be piloted in this country than in South Australia? Of course, care would have to be taken subsequently to maximize the prospect that any applications under the guidelines were handled in the right way. That means not only selecting the right cases, but making the application in a way that would minimize the prospect that they could be refused informally and easily.

I accept that the notion of collective action may not come easily to competing electronic media reporters. However, my background in Law Society work revealed how competitors could sometimes become allied closely in a common cause. Perhaps Susannah Lobez would only need to get a handful of others together to make up a powerful group? Perhaps there is scope for some media lawyers or media law academics to get involved?

I would add some cautionary comments about television. I have been impressed by the way the New Zealanders went about their exercise. I am still in two minds about the wisdom of them trying to work through as many problems as they took on. The results of their work to date suggest that there is no clearly right way to go. For my part, I would suggest that progress is likely to be easier if there were to be a grading of the occasions when television cameras might be used in the courts. For want of more sophisticated titles for the gradings, I suggest "soft", "hard", "too hard", and "much too hard". I believe that it would not be difficult to maximize the "soft" occasions when cameras would be welcomed as they already are at times.

Under "soft" occasions, I would include the welcome and farewelling of judges, the opening of new courts, the opening of trials in which there is a special "public interest", like Pyramid and Estates Mortgage, the filming of footage for documentaries like "The Highest Court", and interviews of Chief Justices on subjects such as sentencing and law reform issues, particularly as to evidence and procedure. Under "hard" occasions, I would include the handing down of decisions in civil cases of particular community interest and the handing down of sentences on pleas of guilty. In relation to the "hard" occasions, the preparation of guidelines would be necessary. Under "too hard" occasions, I would include civil witness trials and the handing down of sentences other than on a plea of guilty. Under "much too hard", at least for the few years, I would put criminal jury trials. With the benefit of hindsight, I wonder whether more might have been achieved in New Zealand if the project had not taken on criminal jury trials. The additional problems which they pose are relatively immense.

At the start of my paper, I implied criticism of the print media. I like to think that I have helped newspapers enough in the past that they won't mind too much. Because the papers are in competition with the electronic media, any advantages gained by the latter will disadvantage the papers. We can't expect the print media to be objective in assessing the merits of televising what happens in the courts. Print journalists and editorials can be expected in the future, as in the past, to marshal more effectively the arguments against additional televising of the courts that those in the electronic media favour.

There are a few other aspects of my subject which I only have time to flag and not to elaborate on. I mention. Firstly, Court Media Liaison Officers. I have referred to them briefly. I ought to have given them more praise. I cannot understand how any court can be expected to get by without one. I expect them to continue to do their invaluable "foot slogging" work. I also expect them to be doing more ground-breaking work, particularly in conjunction with the electronic media court reporters.

Secondly, I mention the matter of judgment summaries. This is one area of expansion which I can see benefiting the courts and the media. There has to be a refining of techniques. This is an area being looked at closely by Prue Innes. She has been, for over five years, the Victorian Courts Information Officer. At present, she is in the United States on a Churchill Fellowship.

Thirdly, I mention the matter of judges being accessible for media interviews. This is an area where I think conservatively. I believe Chief Justices will have to do more and more interviews. Lesser judges should only give interviews when pressed to do so by Chief Justices in areas of special expertise.

Finally, I mention the matter of leadership. To be a Chief Justice these days, one must have an extraordinary range of skills. Whether the pace of change in the areas I have discussed remains very slow or accelerates to become just slow, will depend, more than anything else, upon the leadership and vision of Chief Justices.

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[1] "The Third Branch and the Fourth Estate", second lecture in the series "Broadcasting, Society and the Law", Faculty of Law, Radio Telefis Éireann, University of Dublin, 22 April 1997.