McLeod, Chris --- "Wrestling With Access: Journalists Covering the Courts" [2004] ALRCRefJl 21; (2004) 85 Australian Law Reform Commission Reform Journal 15

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Reform Issue 85 Summer 2004/05

This article appeared on pages 15–18 & 61 of the original journal.

Wrestling with access: Journalists covering courts

By Chris McLeod*

Courts in Australia are conducted on the principle of open justice where access to court proceedings is made available in the public interest.

Journalists play a most important part in court processes. They are the means by which justice is seen to be done. Journalists represent the public that has an undenied interest in knowing that justice is being done. The judicial system is not for lawyers—it is for the public.

Legal systems recognise the role of journalists and publishers by providing protection for reports of court proceedings. The protection isn’t absolute—the reports must be accurate and fair.

The journalists’ bugbear

What frustrates the working journalist most is the lack of ready access to material put before the court, which may assist it in reaching a decision. The ‘paper committal’ or ‘hand-up brief’ (or whatever name it goes by) is the journalists’ bugbear. The purpose of this process is to speed up court procedures. Any journalist who seeks to interrupt the proceedings with an application for access or an appeal after being denied access usually will be frowned upon from the bench. Such delays add to the costs of proceedings.

People involved daily in court processes understand what’s going on. But consider the position of a member of the public sitting in the courtroom—as someone is usually quite entitled to do. That person can hear discussion about the documents and they can hear the decision of the court. If the documents are not read to the court (doing so would defeat the purpose of trying to speed up the process), what is a member of the public to make of the discussions going on between the lawyers and the Bench?

Without expert knowledge of the legal system, it would be easy to reach the false conclusion that a deal is being done or that something significant is being kept quiet.

True, an experienced journalist may understand what’s happening, but then the journalist has to convey—accurately—to the public the relevant information. If a journalist cannot report certain information—for example, information on which a decision to send someone to trial is made—then doubts inevitably will arise about the propriety of the legal system.

Courts should be open

Lack of ready access to information, coupled with suppression orders, closed courts, pseudonym orders and statutory prohibitions all go to the weakening of open court principles, something upon which our legal system and indeed our democracy depends so heavily.

It is a long-established principle that courts shall be open unless there are compelling reasons for closing or restricting access to them. Courts do not have unlimited power to make suppression orders or to close the courts. Such orders can only be made in accordance with statutory provisions and the principles of open justice. Embarrassment, for example, is not a valid reason for closing a court or prohibiting publication of details.

The reporting of proceedings in the Family Court or Children’s Court is more restricted by legislation than reporting in other courts. However, that does not mean a journalist should as a matter of course be denied access to all material before the court.

It is an established principle that the media has standing in proceedings to challenge orders for non-publication or restrictions. The principle was confirmed in 1999 in a challenge by The Herald and Weekly Times to the Medical Practitioners Board of Victoria when it sought to hold proceedings involving deregistration behind closed doors.

If part of the proceedings can be reported under the principles of open justice then the reporter must be given every opportunity to report accurately and fairly. The reporter can only do that if aware of all the circumstances, even if they cannot be published.

History

What then is this open justice principle in the eyes of the judiciary?

Go back to 1649 (and I am indebted to legal adviser Renee Enbom for some of this factual material, including the history), in the trial of Lieutenant Colonel John Lilburne, the court explained the principle this way:

‘...by the laws of this land all courts of justice always ought to be free and open for all sorts of people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred, and guarded with armed men.’

In more recent times—300 and some years on—Gibbs J restated that in the High Court:

‘...the rule has the virtue that proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those administrative officials, for publicity is the authentic hallmark of judicial as distinct from administrative procedure.’¹

I am sure members of the judiciary will react with horror to any suggestion that the judiciary as a whole would act with anything but the highest standards of integrity. But I think the public realises that members of the judiciary are only human; there’ll be those—a minority, clearly—who will act improperly or without understanding community expectations. History shows this to be a correct assessment. There’s also a suspicion that some judicial appointments are made out of political expediency and not necessarily on the basis of the best-person-for-the-job.

Courts of today

Back to today and the situation in Victoria, which appears to prevail in other jurisdictions as well.

The way courts hear and determine matters is quite different to the way such matters were heard many years ago. Nowadays, the courts rely heavily on written evidence and written submissions.

By way of example, before 1972, committal proceedings in Victoria were heard in a similar fashion to the way in which Supreme Court trials are heard today. That is, the parties made opening and closing submissions and called witnesses to give evidence. In 1972, the ‘hand-up brief’ procedure was introduced.

It was introduced to avoid the time and expense of witnesses giving evidence. The procedure involves the police preparing a brief for the defendant and the court. It contains witness statements and any documentary evidence.

Unless the defendant requires a witness to attend court to give evidence, the court will simply rely on the material in the hand-up brief in deciding whether or not to commit the defendant to stand trial. Usually very little oral evidence is given in open court.

How can a journalist sitting in court understand proceedings being conducted by way of written evidence and written submissions if the journalist does not have access to those documents?

If the journalist sitting in court cannot understand the proceedings, the journalist cannot fairly and accurately report the proceedings to the public. It is therefore imperative that journalists have access to documents handed up and relied upon by the court.

The courts have started to recognise the difficulties confronting journalists and the importance of allowing journalists to have access to tendered documents.

Finkelstein J, of the Federal Court, recently explained it like this:

‘If it be that the common law does not permit access to written evidence or exhibits, then the rule of open justice will not effectively secure its objectives ... significant change in the conduct of civil litigation ... has taken place over the last 15 years or so. When the rule that court proceedings should be open to the public was first developed the manner in which most cases were conducted gave content to the rule. When the case was called on counsel for the plaintiff would begin by outlining the nature of the claim that brought the parties before the court ... then summarise the evidence to be led, making references, in more or less detail, to relevant documents. Oral evidence would then be called from the witness. The defendant’s case followed a similar path. The case would conclude with oral arguments. Members of the public who exercised their free right of access could discover what the case was about ... Now things are different ... the parties are required to submit their evidence in chief in the form of affidavits or written statements together with written outlines of their submissions ... To the bystander who has not read the affidavits, this evidence will be largely meaningless ... One unattended result is that the rule of open justice will not fully expose what has taken place in court ... in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances ... If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position...’²

A case study

Last year, the Federal Court applied the above principles in determining an application by The Herald Sun newspaper for access to documents in proceedings involving well-known Australian Football League player, Greg Williams.

The ATO had issued assessments against Mr Williams based on alleged fraudulent understatements of income. Mr Williams sought review of the assessments by the Administrative Appeals Tribunal (the AAT). Mr Williams sought from the AAT an order that the ATO provide particulars of the allegations of fraud. This was refused and Mr Williams sought judicial review in the Federal Court. When the matter came before the Federal Court, The Herald Sun brought an application for access to documents tendered in the proceedings.

The Herald Sun also brought a separate application to vacate a suppression order that prohibited publication of Mr Williams’ name in any report of the proceedings. The newspaper succeeded in both applications and was then able to publish a fair and accurate report of the Federal Court proceedings (including Mr Williams’ name).

Had the Court not granted the media access to the documents and not vacated the suppression order over Mr Williams’ name, it is likely that the public would have remained oblivious to the proceedings. The public would have been ignorant of proceedings that involved issues of great public interest. The same kind of anonymity would not be afforded to most other citizens and the Tax Office’s work in investigating breaches of the law would not be publicised, losing the consequential deterrent effect.

Access to documents

A few years ago, the Magistrates’ Court of Victoria introduced a protocol for media access to tendered documents. The protocol allows journalists to file an application seeking access to documents relied upon in proceedings. This procedure helps ensure that a journalist has access to all documents that will assist the journalist to understand the proceeding and to fairly and accurately report it.

However, most other Victorian courts do not have a similar protocol.

Journalists and their lawyers, therefore, often have no other option but to interrupt proceedings and seek access to documents from the presiding judge. There are many difficulties associated with this process. Judges can be reluctant to hear applications because the application can delay the proceeding. If a judge delays hearing a journalist’s application, the journalist may be delayed in reporting the proceeding. The process can also be slow and costly, and the need for contemporaneous reporting can be unfulfilled.

Therefore, although the courts have moved some way towards recognising the need for journalists to have access to documents tendered in proceedings, journalists still wrestle with the issue of access every day.

Juries and suppression orders

A word needs also to be said about the jury system from a journalist’s perspective.

Some judges strongly believe juries can be directed on key issues, including ignoring superfluous and non-relevant material. Other judges take a much stronger line and threaten journalists, publishers and broadcasters with contempt if they publish such material.

The inconsistency between judges can reflect adversely on perceptions of the legal system. On the one hand it may be that judges recognise jury members are educated people, able to sort the relevant from the irrelevant. But on the other it may seem to some that judges don’t trust, or even like, juries and will act to ensure the jury members are not exposed to any extraneous material. And here we enter the realm of suppression orders.

Some members of the judiciary set the bar quite low. The impression is that it is easier to suppress than to deal with the tricky issues. This has been seen in the lower courts in particular and while it may speed up a hearing, it usually results in challenges to rulings in higher courts.

There will, of course, be times when suppression orders are necessary—consecutive trials involving the same defendant and different offences, for example. But the circumstances must be exceptional.

Who can forget the dramatic events of 9 May 2003 involving the former Governor-General, Dr Peter Hollingworth? Rosemarie Jarmyn filed a complaint in the Victorian Supreme Court against Dr Hollingworth alleging he had sexually assaulted her. The Court made an order suppressing Dr Hollingworth’s identity. The media, therefore, could not report that sexual assault allegations had been made against this country’s Governor-General.

As a result of steps taken by the media to oppose the suppression order, it was subsequently vacated on the application of Dr Hollingworth. Once the suppression order was vacated, Dr Hollingworth urgently released a televised statement denying the allegations. He subsequently stood down from his position as Governor-General.

Had the media not initiated the challenge to the suppression order, the Australian public would have never known that their Governor-General was facing sexual assault allegations. Imagine the gossip, speculation and rumour that would have emerged eventually. That would have been far more embarrassing and damaging than the reporting of the proceedings including a denial to the court of the allegations.

Hedigan J, of the Victorian Supreme Court, talked about the risks of suppression orders:

‘the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision-making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice.’³

Again, there’s reference to the significance of public interest.

Practical considerations

There are some operational issues for journalists, too. They are often criticised from the Bench for moving in and out of hearings and not reporting matters more fully.

A newspaper’s court reporting staff may comprise five journalists in total, covering at least three levels of courts. An average daily court list in a capital city will contain hundreds of cases. Journalists have to select the most newsworthy ones to cover so it is inevitable that:

• they will move around the courts and not be able to sit through entire proceedings; and

• they will need access to court documents to check vital details including charges, names, addresses, verdicts etc.

They also have to keep up with the progress of cases that were reported on the opening day or even follow up previous reports about arrests and the laying of charges as an acquittal or victory for a defendant or plaintiff can bring about a defamation action if it isn’t reported.

Journalists have to condense lengthy and complex information. A trial that runs all day may only be covered in six to 10 paragraphs. That’s the reality of news reporting these days—readers want the important information in as few words as possible. It is why traditional broadsheet newspapers that have produced tabloid size versions have found their circulation rising. These are publishing realities and ones of which courts should be mindful when seeking to have the community understand their actions.

Tensions between the courts and the media too often are seen in the light of the media having to sell newspapers, snare viewers and grab listeners. Those outcomes may be necessary in the commercial world, but the most important principle is that the public is informed of what’s going on in all public institutions. Republishing a 50-page judgment isn’t informing the public—distilling the decision to 10 tight, clear paragraphs is.

Without reportage how can the public be sure that justice is, in fact, being done? Any action by the courts that restricts or impedes the ability of the public to be informed—whether by suppression order, sealed files, lack of access or long complicated pronouncements—cannot be in the best interests of justice.

* Chris McLeod is Editorial Development Manager of The Herald and Weekly Times Group in Melbourne and has been a journalist for 35 years. He is a publisher member of the Australian Press Council.

Endnotes

1. Russell and Russell [1976] HCA 23; (1976) FLC 90-039.

2. Australian Competition & Consumer Commission v ABB Transmission & Distribution Ltd (No 3) [2002] FCA 609; [2002] ATPR 41-873.

3. Herald & Weekly Times Ltd v Medical Practitioners Board. (Vic) [1999] 1 VR 267.