Court Reports

A number of complaints to the Press Council this year have related to the reporting of court proceedings. Chris McLeod, an industry member of the Council, explains how the press approaches court reports.

Few members of the public fully understand the basis on which court proceedings are reported in the media, especially the print media.

This is particularly so for people who are involved in proceedings for the first time - caught up in a civil dispute or facing a charge over a seemingly minor matter - and object to having their names and other details made public.

And those who feel they have been hard done by in court will no doubt feel the media is somehow responsible for perpetuating the perceived error or mistake.

The general principle of law is that court proceedings are held in public. But the principle of open justice does not mean open slather for the media. TV cameras are not yet permitted in most courts and the media has to conduct itself in accordance with the law and court protocols.

Courts have the power to either close proceedings altogether or make orders about what can or cannot be reported. There may be good reason for a court to exercise such power. Details of a case may affect another case about to begin or someone may be placed at risk through their personal details being made public, for example.

There are some matters which cannot be reported unless the court gives permission. These include any information which would identify victims of a sexual offence, most Children's Court proceedings, identification of parties to Family Court proceedings and any information that would identify members of a jury. A court may decide that it's in the public interest for some aspects of such proceedings to be reported.

Open Courts

When proceedings are held in public, reports of them usually are protected. That is, the media may report proceedings without fear of being sued for defamation. In defamation the media has to prove that its statements are true but, in court proceedings, finding the truth is a matter for the courts.

Reporting what people say outside the court carries some risk - the court offers no protection and if what is said tends to interfere with the administration of justice, contempt of court charges may result and if it is defamatory a writ may be issued by those defamed.

To be protected, reports of proceedings must be fair and accurate. As well as each day's account, the reporting of a case in its entirety must also be fair and accurate.

It may not seem fair for someone appearing in court for the first time on a minor charge to have their previously good name mentioned in such unfavorable circumstances. But it is the report of the evidence presented and statements made by participants during the court proceedings that must be fair.

The requirement of accuracy must not be confused with any supposed requirement to report only what is true. Allegations that may eventually prove to be unfounded must be reported accurately, even if they are wrong.

Participants in court actions who believe untruths have been said about them sometimes turn on the media when their complaint might in fact be with the court and its conduct of the case.

Full Coverage

There are a couple of truths about the media's coverage of courts:

• it is not possible to report on every case; and
  
  
• it is not possible to report every detail of the cases that are covered.

If the proceedings are heavily skewed for or against one side then the media is able to report the proceedings accordingly. Those who complain that the media won't report their side of the story (as told outside court) often do not appreciate why not.

The reason is simple: if it wasn't said in court it will be dangerous to report it, particularly if the proceedings are continuing. The media would risk a contempt of court charge.

Another source of complaint about media coverage is the reduction of often lengthy and complex evidence to summary form in a newspaper report or in a radio or television broadcast.

But as long as fairness and accuracy in relation to the proceedings themselves is maintained the report will still be protected. Editing out parts of the evidence should not give rise to inaccuracy or unfairness.

The yardstick the courts themselves have applied over the years is: as long as the report conveys the meanings a reasonable person sitting in the court would have deduced, the media report usually will be in the clear.

When the media gets a court report wrong, there can be severe penalties. If the matter is before a jury, contempt of court may result. This can end in significant fines and even jail sentences in extreme cases. If the conduct of the media causes a trial to be aborted or abandoned, the media outlet can, in some jurisdictions, be held liable for costs thrown away.

The choice of which case is covered is usually left to the court reporters. They will assess the importance of the case, the penalty or award that could be imposed, the significance of the people involved and even the significance of the case in terms of setting legal precedents. In some cases the outcome may need to be reported if earlier proceedings (including the laying of charges) have been reported.

Public Access

All courts in Australia operate on the basis that as far as is possible their proceedings shall remain open. This permits members of the public to watch proceedings and it permits the media to report on those proceedings for the benefit of those who are unable to attend personally.

Public access to court proceedings has long been a cornerstone of the justice system - not only must justice be done, it must also be seen to be done. Ensuring the dispensing of justice remains transparent is a legitimate role for the media - even to the extent of reporting cases where those accused are cleared and their good name remains.

Convictions and even not guilty verdicts that are produced behind closed doors can give rise to the thought that perhaps strings were pulled and favors called in. The ability to report proceedings openly ensures that the public retains faith in the judicial system.

Each media outlet will have its own policy on covering courts. Some in small regional and even suburban centres will report every case in some form. Others will not report any.

Some proceedings are easier to report than others. A journalist covering the Supreme Court might get access to a transcript of the day's proceedings. But a journalist covering a magistrate's or district court session might find themselves in a packed courtroom where cases are being rushed through and the ability to report accurately is hindered by noise, bad acoustics, lack of recordings and so on.

A seemingly trivial matter might attract media interest and a major crime won't. Sometimes a seemingly insignificant matter will assume importance for reasons that won't be immediately obvious. The interest might be in the "who" rather than the "what" or the nature of the dispute.

The Australian Press Council accepts the right of newspapers to report cases heard in open court. The council also recognises that newspapers have to conduct themselves in accordance with the law when they do so.

Generally, if a newspaper reports open court proceedings in accordance with the law there should not be a breach of the Press Council's principles.

But sometimes questions of taste and inappropriate detail will arise. While a report may be protected by law the newspaper will need to ensure that it does not unnecessarily offend its readers. If it does it may well attract the attention of the Press Council.

Chris McLeod

Extracts from relevant Press Council adjudications

Subject to statutory restrictions and valid judicial orders, newspapers are free to publish fair reports of court proceedings. There are strong reasons of public interest for this freedom to remain. A consequence is that journalists carry the responsibility for making a professional judgment about what will be reported. There has long been a consensus amongst responsible journalists that as a general rule nothing should be reported which might identify the victim of a sexual assault and this attitude is strongly endorsed by the Press Council. A sexual assault is a gross invasion of privacy and dignity involving humiliation and embarrassment as well as physical suffering. Publicity compounds the suffering and may also be a deterrent to the reporting of the offence. In these circumstances the publication of any identifying particulars of the victim of a sexual assault can only be justified by some compelling reason of public interest or fairness. This will rarely occur. (Adjudication No. 290. July 1986)

The newspaper pointed out that the duty of the Press was to report actual proceedings fairly and accurately and not to speculate or guess about the eventual admissibility of material alluded to in an opening address. "While agreeing with the first part of this statement, the Press Council believes this may be an appropriate occasion to draw attention to some recommended practices in the reporting of courts - in particular, that opening addresses of counsel should be reported with reserve as witnesses may not swear up to the instructions on which counsel base their remarks and that the defence response to each prosecution claim should be given." (Adjudication No. 190. March 1984.)

see also
Index on courts and contempt material

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