Reporting the courts

The question of contempt of court by the media has been in the news recently with high-profile cases in Melbourne and Adelaide. Industry member of the Council, Chris McLeod, looks, first, at what Victorian judges have been saying lately and then in detail at a recent acquittal.

1. A question of openness

A casual observer sitting in on some recent Supreme Court cases in Melbourne might conclude that relations between the judiciary and the press have collapsed.

Two judges in high profile cases have been scathing of press coverage. Both have excluded the press from covering various aspects of trials before them.

One judge suggested he had lost confidence in the media being able to report proceedings properly and another has held sessions behind closed doors, not even entering the hearings in the published court lists.

A number of media outlets face the real risk of contempt of court charges in coming months.

These are some of the recent remarks made by judges in the Supreme Court about media coverage:

"I have to say when I read the [article], which was brought to my attention by my Tipstaff on the morning, I just couldn't believe that it had been written by any responsible journalist. I just couldn't accept that they would really write this knowing that the trial was about three weeks away."

"I think there is a change and this court must be very careful to ensure that the media does not overlook its obligations and overstep the mark ... The idea that you can deal with the media after you have aborted a trial at huge expense to the community strikes me as nonsense, and if the media cannot regulate themselves then I think the court must make sure they do."

"I have noticed a change and I think the media has to look at itself. There are many criminal trials going on in this State and it is very important the media does not overstep the mark."

"I am concerned about a risk that if there is an avalanche of media coverage of this case and I suspect there would be, it may not be a fair and accurate report, it may be unbalanced and knowing the media as I do, the media will want to highlight some of the more sensational aspects of the case which may have a prejudicial effect upon the accused. I am not prepared to run the risk and in the circumstances I think it appropriate that I should order that there be an embargo on the publication of any matters concerning this trial until verdict or further order, and I propose to so rule."

Some in the press believe judges have become over anxious about the conduct of the complex trials they are presiding over, resorting to suppression and closed-court orders without paying sufficient attention to the principles of open justice and justice being seen to be done.

It is true that the press transgresses from time to time. But is there a concerted effort to push the envelope as some might seem to be saying?

No.

Human error

Human error can't be discounted. And neither can argument about whether the possibility exists of tainting a jury when a trial may be at least a year away. And the robustness of juries has been highlighted by a number of judges themselves and academics, undermining claims that juries are susceptible to outside influences.

A Melbourne newspaper included information that was not intended to be included for 90,000 copies before someone realised a mistake had been made. The print run was stopped and the information was removed.

It was a mistake but human error is punished severely under contempt of court law, specially when the offender is the press.

Judges who make mistakes (and they from time to time acknowledge that they do) escape more lightly than the press.

A retrial ordered at appeal for misdirection of a jury, for example, carries no penalty that we ever hear about for a judge who got it wrong. That's not to say there should be a penalty - but it contrasts with the threat of penalties faced by the press that include fines and jail terms. And it highlights the need for the press to be given every assistance possible to get things right.

A good history

The Victorian press has been covering court cases for more than 160 years, mostly on a daily basis. Yet the convictions for contempt probably amount only to a handful. The potential for error is great, yet the errors are relatively few.

It is clear that some judges don't like the way the press reports cases and judgments. There are two important considerations here - the press is the eyes and ears of the community.

Open justice principles require that the public is able to find out what is going on in the legal system. It simply isn't practical for a million or so members of the public to turn up to court to find out for themselves what's happening, even though they'd be entitled to do so. Enter the press, amid another practical issue.

Judges may prefer proceedings and pronouncements to be reported verbatim. Short of a live broadcast of proceedings, that just isn't possible. Pages and pages of legal language could not be properly understood by every single person in any event. Space and time constraints mean the press has no hope of publishing everything. Even less hope when a wad of material is made available right at the end of a trial.

Complex material has to be summarised and put to the audience in terms that they understand. If the press isn't able (or permitted) to do this, then application of the law becomes the domain of practitioners only. There is already a feeling among some in the community that this is the case anyway. This shouldn't be the case and the press won't let that happen. The press, in the interests of the public, aims to continue reporting court proceedings and scrutinising them.

Closed-door proceedings are unhealthy - they can breed rumour, suspicion and distrust.

While some judges see a recent trend in the press to push the boundaries of reporting, what cannot be ignored are the circumstances that have prevailed over the past few years in Victoria in particular - a swag of killings involving notorious people, a string of police facing corruption charges and a number of high profile drug cases. Many of these matters are interwoven.

Some complexity

The press, like the judges, is trying to deal with complex legal matters. Unlike judges though, the press doesn't always get access to all the material presented to a court. Add to that suppression orders and various statutory prohibitions (such as the Witness Protection Act) and a reporter can end up with a Swiss cheese story - full of holes.

That might suit the court, but it tells readers little about the judicial process and the reasons decisions are made.

Little if any consideration is given to what the press's audience might make of things. At times it appears as though that's not even a consideration. Yet isn't it the public at large that is being served by the judicial system?

In a recent contempt case against a media outlet, the prosecution argued that no comment on sentencing should be made until the last avenue of appeal has been exhausted.

That would mean, for example, a sentence handed down today if successfully appealed might not be able to be reported for another two to three years. Does that satisfy the principles of open justice? It certainly would make a mockery of the principle of contemporaneous reporting of proceedings.

Of course, some judges recognise the importance of fair and accurate reporting by the press and will go out of their way to help the court reporters get things right. There can be no harm in that, particularly if the judge is anxious that there be no interference to the trial in progress.

The infallibility of the courts

These issues raise questions about the infallibility of the court.

If judges are going to expect mistake-free performance from the press, what then of their own conduct?

A Victorian country magistrate was called back to Melbourne in March after it was revealed he had heard speeding charges against two court officials in chambers and gave them reduced penalties. It was acknowledged that the charges involved were minor, and both the Attorney-General and the Chief Magistrate said there was no evidence of dishonesty or impropriety but they agreed the matters should have been heard in open court.

How did this come to light? Press scrutiny.

In a recent contempt of court case, the presiding judge observed about the roles of the press and the courts: "Each has a role in exposing and correcting the mistakes of the other. Each ought to do so while giving practical acknowledgment to the vital part the other plays in the maintenance of a decent, humane and civil society. Each, albeit that both are encumbered with the defects of their humanity, is worthy of respect. Each ought to accord that respect to the other. They each in their different ways serve as a reminder of both the light and dark sides of human nature of humankind's capacity for reason and justice that makes free government possible; and of its capacity for passion and injustice that makes such government necessary."

This is a message that could well be taken on board by the judiciary and the press.

Chris McLeod

2. Calculated to interfere?

The Sunday Herald Sun and its then editor have been cleared of contempt of court for editorialising that Victorians would look with special interest at the jail term imposed on a double killer

Justice David Harper's decision in the Victorian Supreme Court on March 20 gives some valuable insight into the relationship between the courts and the press.

His decision also contains some messages for the press about how it handles references to the courts. While the commercial considerations of the press were acknowledged, there was a note of caution about putting them above public interest.

The editorial was published between the defendant's guilty plea and sentencing.

Its last paragraph said: "Justice Bernard Bongiorno will make his sentencing decision soon. Given the climate of community concern over what are perceived to be soft penalties for serious crimes, Victorians will be watching with special interest".

The day after publication, Justice Bongiorno directed contempt charges be laid against the then editor, Alan Howe, and the Herald & Weekly Times Pty Ltd.

He said at the time: "Yesterday, on page 38, the Sunday Herald Sun published an editorial concerning the case of R v Sharpe, which was heard before me on Friday afternoon last, 20 May, in Melbourne. I adjourned the case part heard to 6 June next. The publication of that editorial would appear to have constituted a prima facie case of sub judice contempt of this court. The case had not been completed. It is part heard and, particularly, Sharpe has not been sentenced."

The resultant contempt of court charge was particularised as follows:

The publication of the editorial constituted a contempt of the Supreme Court in that it had a tendency or was calculated (in that it was objectively likely) to interfere with the due administration of justice in that:

(i) The editorial had a tendency or was calculated (in that it was objectively likely) to undermine confidence in the administration of justice by giving rise to a serious risk that the Supreme Court of Victoria (constituted by the Honourable Justice Bongiorno) would appear not to have been free from any extraneous influence; and

(ii) The editorial had a tendency or was calculated (in that it was objectively likely) to influence the Honourable Justice Bongiorno in his decision-making process."

The word "calculated" in the context of contempt does not mean "intended".

The prosecution did not allege that there was actual interference with the administration of justice, instead alleging that the editorial had a tendency to interfere. It argued that the editorial would give rise to a serious risk that the court would not appear to have been free from any extraneous influence - that even if the editorial wasn't likely to influence Justice Bongiorno the public might think that it did.

Justice Harper set out the issue this way: "A charge of contempt must be proved beyond reasonable doubt; and the test is whether there is either an actual interference with the administration of justice or a real risk, as opposed to a remote possibility, that justice will be interfered with.

A gruesome case

The Sharpe case was particularly gruesome. Evidence revealed about the killing of his wife and jury would have turned the stomach of most readers. The editorial set out the facts simply and succinctly, without sensationalism. Said Justice Harper:

The account it gave of the prisoner's crimes was restrained and, within the limits imposed by its restraint, accurate. For this, the respondents are to be commended.

But would readers think that the Sunday Herald Sun was trying to tell Justice Bongiorno what to do? Justice Harper:

Editorials in the Sunday Herald Sun, directed to the pending result of a particular case, are extraneous to the considerations to which the courts may have regard in considering that particular case. The respondents know this; or, if they do not, their knowledge of the theory of democratic governance is sadly deficient. They nevertheless chose to publish the editorial between the plea and the sentence.

I have no reasonable doubt that by doing so they intended to influence their readers into thinking that, unless the court imposed upon Mr Sharpe imprisonment for life without remissions, its sentence would be less than adequate; and if this opinion were brought to the attention of the judge, so much the better for the respondents. To that extent, they put the commercial interests of the first respondent (HWT) - which are generally well served by the generation of controversy, fear and (so long as it is not directed at itself, or those it favours) "outrage" - above the public interest.

The public did of course have a legitimate interest in the imposition of appropriate punishment upon Mr Sharpe, as upon all offenders. So did the Sunday Herald Sun. The problem is that the two interests are not the same, although - in common with the media in general - the Sunday Herald Sun likes to portray the two as in alignment.

The public interest

Justice Harper referred to public interest in the case as this:

The public interest is in a measured and fully informed discussion about sentences and sentencing policies both in the broad and in the particular case, including a dispassionate analysis of the correctness or otherwise of an individual sentence, and of the costs and benefits of punishment for the individual offender, for his or her family and dependants, and for the general community. Above all, the public interest is in the imposition of sentences which are based upon such an analysis by a judge beholden to nothing else but those matters to which he or she must by law have regard. To the extent that these interests do not coincide with the commercial interests of the first respondent, it will be tempted to prefer the latter.

Doubtless it will often succumb to that temptation, as it did in this case. In any event, the respondents are entitled to express their views, informed and balanced or otherwise, provided they are not in the process guilty of an actual interference with the administration of justice, or behaviour which gives rise to a real risk, as opposed to a remote possibility, of such interference.

In this case, the editorial in question was informed and balanced - except for its timing.

And of the possibility of contempt in this case?

I am not satisfied beyond reasonable doubt that the editorial had a tendency or was objectively likely to influence Bongiorno J in his decision-making process. Nor am I satisfied beyond reasonable doubt that the editorial had a tendency or was objectively likely to undermine public confidence in the administration of justice by giving rise to a serious risk that the Court would appear not to be free from any extraneous influence.

And, signifcantly, he pointed to the public's role:

Each case must be judged against its particular circumstances. One relevant consideration is whether the editorial was so strident that, if its message was ignored by the judge when sentencing the accused, there would arise a real possibility of uninformed public clamour of the kind which would bring the courts, and therefore the administration of justice, into disrepute.

This was not such an editorial. Not only was it a measured recitation of the facts, but the facts were such that a severe punishment, involving a long period of incarceration, was, one would have thought, inevitable. Had it not been imposed (as in fact it was) the public would have been entitled to a careful and thorough explanation from the judge of his reasons for deciding otherwise. The public could then - assuming that the sentencing remarks were reported carefully and in appropriate detail - make an informed decision about the merits of the sentence. A public expression of dissent that did not descend into a personal attack on the judge would in those circumstances have been entirely within the democratic right of those who disagreed with him.

Strident views

And to the question of whether the press could ever be in contempt for expressing strident views about cases and sentences. Yes, said Justice Harper, it was possible that such a case could arise:

An editorial published between conviction and sentence, in which the mitigating circumstances were ignored and the severest possible sentence stridently demanded, might well amount to a very serious contempt.

That's a clue for editors: when proferring criticism or analysis of decisions and options, don't ignore any mitigating circumstances that had been presented to the court .

While suggesting it was innappriopriate for the newspaper to recommend a particular sentence, he said this did not amount to contempt, saying not every wrongful act was a crime.

He observed:

A sentencing judge reading the editorial would not, I think, be influenced in the slightest by it, while acknowledging with wry appreciation the respondents' skill in testing the boundaries of the law of contempt. The Sunday Herald Sun's reading public would, I also think:

(a) accept that here was a sentence to watch;

(b) be reinforced in its assumption that there was in the community a climate of concern over what are perceived to be soft penalties for serious crimes;

(c) give not a second's thought about whether that concern was warranted;

(d) make a mental note to expect outrage were anything much less than life without parole to be imposed; but

(e) not conclude that the judge had already been trapped, or even affected, by any extraneous influence.

Justice Harper said he had noted previous litigation involving HWT in which contempt of court had been alleged but not found.

The appropriate conclusion is that there was not a serious risk that the court would appear by reason of this editorial to be subject to outside influence.

And in dismissing the application for a contempt conviction, he concluded:

I am satisfied that no judge faithful to his or her oath would have been swayed consciously or unconsciously by the editorial in question into doing other than that which his or her conscience dictated.

Chris McLeod

see also
Index of material on courts and contempt

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