Courts and the Media

Abstract

Established media organisations are uniquely linked to open and accountable government. One aspect of their ‘watchdog’ role is fulfilling the ‘right to know’ about matters of public interest. Another aspect lies specifically in court reporting. In an era of increasing public scrutiny of judicial decisions with a simultaneous demand to ensure fair and just outcomes, this chapter questions how media and the courts negotiate the complex and changing nature of their relationship in the twenty-first century. It does this through analysis of a selection of high-profile cases and examples that provide insights into these dynamics. The chapter argues that when courts and media do clash, it is often a case of not understanding or taking issue with one another’s logics, operations or constraints.

Practitioner Perspective: Pell, the Press and a Pandemic

• Danny Tran 

1. Australian Broadcasting Commission, Southbank, VIC, Australia

   Danny Tran

The single largest complaint that lawyers level at the press is that the stories they have written are riddled with errors.

Court reporting is a legally hazardous and detail-oriented job, focused on scrutinising a litigious profession that can be sensitive about how things are portrayed, so it is particularly frustrating when those same lawyers vehemently oppose access to documents that would clarify key facts or add valuable context. It is all the more baffling because court reporters share the same values as those at the bar table and the bench—we also believe justice is a fundamental cornerstone of any functioning democracy; that it should be accessed equally by all and must be seen to be done. But unlike those we scrutinise, the press cannot perform this function without the implicit and explicit support of the justice system and all its players including judges, magistrates, clerks and other staff.

The principle of open justice is as important as justice itself, and full confidence in the judicial system can only be achieved if it can be scrutinised without restriction. Yet as it stands, not everyone who participates in the justice system understands or even accepts the role of the press in raising confidence in the courts. This is made even more complex by new technologies that raise fresh ethical and existential issues around open justice, contempt of court, suppression orders and scrutiny.

COVID-19 and the Courts: More Accessible, Less Open

The COVID-19 pandemic brought the justice system to its knees and nowhere was this more keenly felt than Melbourne, Australia—the world’s most locked down city during 2020 and 2021. Before the virus struck, it was not unusual to see queues of people stretching out of the Melbourne Magistrates’ Court building. Inside, magistrates, police officers and the accused would spend hours together in crowded courtrooms. But in 2020, all of this came to a grinding halt in the face of rising infection rates and a worsening death toll.

Despite historical conservatism, the courts acted quickly, embracing new technologies by moving hearings online and pressing pause on most in-person hearings.

Interestingly, each jurisdiction in Victoria embraced a different digital platform and developed its own procedures. The Magistrates’ Court chose Webex and the County Court used both Webex and Zoom, with cases being set up as meetings and the parties being invited as participants. The Supreme Court and the Court of Appeal also used Webex, but livestreamed the hearings via Vimeo. There was no participation, possibly because reporters rarely address or make application before these higher courts without legal representation.

Only the most urgent matters would involve everyone face-to-face. Solicitors and barristers, so used to appearing from the bar table, instead appeared by video link from the kitchen table. Clients would sometimes appear from the couch.

For the press, the change was a double-edged sword. Suddenly, the time it took to move between courts and courtrooms vanished. Reporters were able to have two virtual hearings open at the same time and dip in and out of courtrooms hundreds of kilometres apart. It was a new and powerful way for the press to scrutinise more of the justice system. But there was a trade-off. Before the pandemic, reporters, like members of the public, were able to walk into almost any courtroom and bear witness to what went on inside without declaring ourselves or being questioned about our presence. However, under these new rules, reporters wanting access to cases in the Magistrates’ and County Courts had to request access to cases, identify themselves as members of the media and rely on clerks or associates to physically click the button of a mouse and admit us into a hearing. They also had the power to throw us out.

Through its response to the pandemic, half the courts in Victoria inadvertently created a new layer of gatekeeping to open justice. This became another barrier to navigate. The feeling among reporters was that during the pandemic, more courts became more accessible, but they were ultimately less open.

Like all industries adapting to change, there were some teething issues. But for the most part, the press were given access to hearings unless there was a special reason. Although we did notice that, in order for the system to work as intended, every participant needed to be operating at the absolute best of their ability at every single moment of the day; something which no one can do for a sustained period of time. Even the slightest miscommunication—for example a clerk forgetting to tell a public affairs officer that a hearing had started—could mean that a case is never reported.

If the current status quo with online hearings is to remain, it is crucial that the courts keep pace with and understand the news media’s logistics, operations and constraints under these new operating conditions.

Pell and the Press: How Australian Democracy Was Undermined by International Reporting

Cardinal George Pell, who would later have his conviction overturned by the High Court, was found guilty of child sex abuse charges on 11 December 2018, but the nation that hosted his trial was effectively in the dark until 26 February 2019 due to a suppression order on the result. It was a significant moment where the courts tried to balance open justice and the right to know, with the right to a fair trial (see Chapter 15 in this volume for further detail).

But on the day of the conviction, the Daily Beast, an American online news media outlet, broke the suppression order and published details of the first trial, marking the report with an exclusive tag. It was an incredibly frustrating moment for the Australian press, which was legally bound not to report on the story.

Some of my colleagues and I disagree about the suppression order that was put in place. My belief was that it was a contempt of court issue and necessary in order to preserve one of the most fundamental rights and in our democratic tradition—that a person, accused before a court, is presumed innocent. By suppressing the result of the first trial, the court accounted for unconscious bias, something which is out of a juror’s control. But there has been little discussion about the significance of the decision for a foreign outlet to break an Australian suppression order.

Let’s be frank—the Daily Beast’s decision and its consequences extended beyond the operational. It was more than just an outlet making a call about the right to know. The move was made with callous disregard for the Australian justice system. It was an intervention in our democracy by a foreign media outlet which considered that its interests were more important than the rights afforded in a sovereign nation’s democracy. It appears that little to no consideration was given to the alleged victims or the accused, who also deserved the right to a fair trial of profoundly serious allegations.

Our international colleagues would be well-served to remember that the press are not participants in the judicial process. We are observers. The right to know goes hand-in-hand with the right to a fair trial but does not supersede it, a mistake our American neighbours made that day.

A Responsible Press Does Not Forget Its Role

There is no question that the justice system has changed dramatically over time, and particularly since 2020, and as such, so has court reporting. But what has not changed are the fundamental values of our craft, regardless of new technologies or tensions. The press must never lose sight of its role in the system. Our responsibility is, and always will be, to bear witness. We are observers to the justice system, there to scrutinise. Anything more is simply advocacy.