Category Archives: courts

15 mins with @journlaw – Peter Gregory on the art of court reporting #MLGriff #medialaw

By MARK PEARSON

What is the secret to good court reporting? Highly experienced court reporter and academic Peter Gregory [@petergregory17] – author of Court Reporting in Australia (Cambridge University Press, 2005) – tells @journlaw the essential techniques needed by a journalist wanting to cover the court reporting round.

CourtReportinginAustraliacoverGregory explains how he recently returned to duty when he filled in to cover the sentencing of Adrian Bayley for the murder of Jill Meagher – in a marathon 12 hour shift!

He discusses the court reporter’s difficulties in writing fair and accurate reports of trials, particularly when they might be unfolding in different courtrooms at the same time.

He also gives tips on how a journalist might stand up in court to oppose a suppression order being imposed by a judge or magistrate.

Useful viewing for journalism and law students – and for anyone wanting an insight into the work of the court reporter.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Filed under blogging, contempt of court, courts, free expression, media ethics, Media freedom, media law, Press freedom, sub judice, suppression, Uncategorized

15 mins with @journlaw – Peter Gregory on ‘contempt and the court reporter’ #MLGriff #medialaw

By MARK PEARSON

We hear about the many types of contempt affecting the role of the court reporter – but how does a journalist manage this in practice?

That is exactly the issue I raised with veteran court reporter (now academic) Peter Gregory [@petergregory17] in this interview covering the main types of contempt of court affecting court reporting – contempt in the face of the court, disobedience contempt, sub judice (prejudicial reporting) and interference with the deliberations of jurors.

Gregory – author of Court Reporting in Australia (Cambridge University Press, 2005) – explains how court reporters might be affected by such forms of contempt, offers examples from his own career, and suggests how journalists might adjust their own practice to minimise risk.

CourtReportinginAustraliacoverHe looks at the impact of new technologies – particularly social media – in the courtroom. Finally, he assesses the dynamics of social media and traditional media at play in the major Victorian trial of the murderer of Irishwoman Jill Meagher (Adrian Bayley) which resulted in the jailing of blogger Derryn Hinch on a contempt charge after disobeying a suppression order.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Ten minutes with @journlaw – Anne Stanford from @SCVSupremeCourt talks open justice #MLGriff

By MARK PEARSON

In this week’s interview (actually 14 minutes!) I chat with the Strategic Communication Manager at the Supreme Court of Victoria, Anne Stanford, about open justice, suppression orders and general court reporting guidelines.

Listen to Supreme Court of Victoria Strategic Communication Manager Anne Stanford on open justice.

Listen to Supreme Court of Victoria Strategic Communication Manager Anne Stanford on open justice.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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#Hinch (@HumanHeadline), #Morcombe and open justice – lessons in media law

By MARK PEARSON

It is timely that in the space of a week we should see the Human Headline (@HumanHeadline) Derryn Hinch released from jail for a publication offence and a serial offender receive a life sentence for the sex murder of teenager Daniel Morcombe.

CatchingTheDevil(Morcombefrontpage14-3-14)C-M

Courier Mail front page 14-3-14

We learned yesterday after Brett Peter Cowan was convicted of that 2003 crime that he had served time twice earlier for similar offences.

He is exactly the kind of individual that Hinch wants placed on a public sex offender register for exactly the reason most talkback callers and social media commenters are asking this question: How can we release such individuals anonymously into our communities when we cannot be sure they will not strike again?

Hinch asked it again this morning:

Hinch became the first Australian journalist jailed this millennium for a publishing offence when he was jailed for 50 days refusing to pay a $100,000 fine for breaching a suppression order on the prior convictions of Adrian Ernest Bayley – the accused sex murderer of ABC worker Jill Meagher in Melbourne in 2012.

In 2011 he was sentenced to five months of home detention for publicly naming two sex offenders at a rally and on his website in defiance of such anonymity orders.

In 1987 he was jailed on a contempt of court charge after broadcasting the criminal record of a former priest Michael Glennon accused of child sex offences and implying his guilt in his high rating Melbourne radio program.

It was only by a 4-3 majority that the High Court later stopped short of overturning Glennon’s conviction on those sex charges on the grounds of Hinch prejudicing his fair trial. (Glennon died in jail this year.)

Journalists and media law students have much to learn from the events of the past week.

While the crimes themselves left a trail of human destruction, the Hinch and Morcombe stories make for ideal case studies in a media law module covering open justice, contempt of court and court reporting – the exact module my students will be starting next week.

They will get to research and debate these kinds of important questions that arise from the week’s events:

  • What public policy issues are at play that see a journalist jailed for reporting the past convictions of an individual convicted of a high profile crime?
  • What does such a penalty say about Australia’s standard of media freedom?
  • Why is Australia’s approach to this level of suppression different from that applying in the United States?
  • Why should the mainstream media be prevented from reporting such material when social media platforms and certain websites are full of it?
  • Why would Hinch’s blog and Twitter feed where he breached the suppression orders over Bayley not represent a ‘real risk of prejudice’ to the trial, when mainstream media coverage might do so?
  • How can juries be quarantined from such information and – if they can’t – why shouldn’t the media be allowed to publish it?
  • Do other methods of dealing with juries – judges’ instructions, training, sequestering etc – mean we no longer need to suppress such material?
  • Are the past offences of such criminals matters of such overwhelming social importance and public concern that suppression of the details should be considered contrary to the public interest?
  • Should the Courier-Mail’s front page heading of February 21, 2014 – ‘Daniel’s Killer’ – have forced the trial to be aborted? Should it be grounds for a sub judice contempt charge? Should it be grounds for Cowan’s appeal?
  • How can a journalist report upon such proceedings in an interesting and timely way while navigating the various restrictions that apply?
  • How ‘open’ should ‘open justice’ be in such high profile trials? Should cameras and smartphone recordings be allowed in court? Should tweeting and other social media usage be allowed in court?
  • Is it appropriate in the modern era of communication that a major television network has to rely on a presenter standing outside a courthouse relaying sentencing information to the audience from a court reporter on the inside via telephone?
  • How much social media commentary should be tolerated about such cases while an accused is facing trial?

I’m sure many other questions arise too – and would be keen for other educators, journalists, lawyers and students to use the Comments section here to pose them so my students can take them up in lecture and tutorial discussions.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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The Human Headline legacy – the jailed Hinch, suppression and free expression

By MARK PEARSON

Broadcaster, tweeter, blogger and veteran journalist Derryn Hinch – the self-proclaimed ‘Human Headline’ – has been released from jail after serving a 50 day sentence for breaching a suppression order. 

Derryn Hinch's 'Human Headline' blog - Countdown to Freedom

Derryn Hinch’s ‘Human Headline’ blog – Countdown to Freedom

Hinch had refused to pay a $100,000 fine over his blog and Twitter comments including suppressed background material on Adrian Ernest Bayley, accused of the Melbourne murder of Irish woman Jill Meagher.

Hinch has been jailed twice, fined and sentenced to home detention for his contemptuous reportage and commentary about sex offenders over more than a quarter of a century.

While much of the coverage of his prosecutions and trials has focused on his cavalier and principled stance in the vein of his ‘Human Headline’ moniker, he has also been responsible for a body of case law covering sub judice contempt, the naming of a child sexual assault victim and the defiance of suppression orders – in his television and talkback radio programs, blogs and Twitter feeds.

I am preparing a paper for the ANZCA conference in Melbourne in July, reporting on a legal and textual analysis of eight key Victorian and High Court cases involving Hinch as a party in 1986, 1987, 1996, 2011 and 2013.

It reviews these key cases involving Hinch as a defendant and an appellant since 1986 – including Magistrates, Supreme Court, Court of Appeal and two High Court judgments – and identifies the key media law principles shaped in the process.

It concludes that the Hinch legacy is far more significant than his shallow ‘Human Headline’ title suggests – and ventures into important human rights questions arising in the complex legal and moral terrain where free expression, the ‘public interest’ and the ‘public right to know’ compete with an accused’s right to a fair trial, an ex-prisoner’s right to rehabilitation and a child’s right to protection from sexual predators.

For example, Hinch’s appeal to the High Court over his contempt conviction in 1987 was unsuccessful but resulted in a broadening of the public interest defence to sub judice contempt.

His latest case offers an excellent summary of the relevant factors considered in deciding whether there is a real risk of prejudice to a trial, because Hinch was acquitted on a second contempt charge that his blog ‘had a tendency, or was calculated, to interfere with the due administration of justice in the trial of Bayley’.

Victorian Supreme Court Justice Stephen Kaye ruled that three factors combined to reduce the tendency of Hinch’s blogging to prejudice potential jurors: the small readership of the article, the period of delay between the publication of the article and the likely trial date of Bayley, and other prejudicial material about Bayley circulating in the media and social media at the time (para 114). While ‘highly prejudicial’, Justice Kaye had a ‘reasonable doubt’ in light of those three factors that the article would have prevented Bayley getting a fair trial.

I will post updates on this paper as the research and writing unfolds. Meanwhile, no matter what you think of Hinch’s bravado in his naming and shaming of sex offenders, at least this week we should be able to celebrate the release of an Australian journalist from jail.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Filed under blogging, contempt of court, courts, free expression, media ethics, Media freedom, media law, Press freedom, sub judice, suppression, Uncategorized

If #cyberbullying is up, why is youth #suicide down?

By MARK PEARSON

[Extracted from my public lecture ‘Social Media – Risks and Rewards’]

Administrators and parents are indeed concerned about social media – partly because the little they know about it has been informed via the lens of the news media and war stories like those I have related above. Their perceptions are also skewed by the new industry of cyber-safety – everything from net nanny systems for your IT system through to speakers and consultants ready to advise on the evils of trolls and cyber-predators. I am not suggesting such inputs are unnecessary, but I wonder about their impact on policy at a time when parents and administrators are already approaching Web 2.0 with trepidation.

With all these resources committed to it, one might be excused for believing cyberbullying had driven young people to the depths of depression and anxiety and were consequently taking their own lives at an alarming rate. The fact is that in the decade 2000-2010 – a period during which both Internet and social media usage grew rapidly – youth suicide in Australia actually declined. It declined across the whole 15-24 year age group, with suicides among males in that age group decreasing by 34 per cent. That is not to say, however, that the rate of youth suicide is not alarming. The number of suicides is still far too high and like all stats this figure can have a range of explanations – better counselling, changes in media coverage, the efforts of campaigns like Beyond Blue and RU OK? (partly on social media),  and improved medicines for psychiatric conditions. …While it is tragic for any young person to take their life for such a reason, there seems to be no hard data that Internet and social media usage is driving more young people to this level of despair (ABS, 2012).

After all, social media is in many ways just a microcosm of our broader lives, and problems like bullying have always existed. These platforms present new channels for the demonstration of such behaviours, replacing or supplementing replacing the schoolyard taunts, the prank calls, the practical jokes and the toilet graffiti.

See the full lecture at: https://journlaw.com/2013/08/29/social-media-risks-and-rewards-journlaws-public-lecture/

© Mark Pearson 2013

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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Social media risk and literacy in the new Australian civics curriculum

By MARK PEARSON

[Extracted from my public lecture ‘Social Media – Risks and Rewards’]

Screen Shot 2013-08-28 at 9.21.21 AMAt the very least an important foundational literacy one must have to empower one to assess social media risk – especially the legal risks involved – is an education in civics that explains the rights and responsibilities of individuals, the legal consequences of actions, and the systems in which these operate. Australia has lacked a consistent approach to civics education but fortunately the new Australian curriculum has a Civics and Citizenship component covering these kinds of issues at an allocated 20 hours per year throughout years 3-10 (ACARA, p. 11). It even specifies a competence in ‘limiting the risks to themselves and others in a digital environment’ (p.20). It aims to encourage young people to ‘act with moral and ethical integrity’ to ‘become responsible global and local citizens’ (p.3).

Frankly, this is where I believe the best approach lies. If we are going to reap the potential of new technologies we cannot become so risk averse that we ‘lock and block’ the opportunities as we try to minimise the dangers. The Gold Coast private school that recently banned its students from using social media on its grounds continues to allow its students to engage in contact sports with far greater potential risks to their minds and bodies than any Internet platform might present. They do so because they perceive the ongoing social and educational benefits of team sports as outweighing the very real risk of physical injuries. They invest in the expert staff to coach, they qualify them with first aid training, and they teach the children the code of behavior expected on a sporting field. And I would not for a moment suggest they should not. Yet they choose to ‘lock and block’ some of the most valuable communication tools developed in the history of human invention.

I suggest the answer is not in deprivation and censorship, but in sensible social media guidelines and foreshadowed consequences for misuse, accompanied by a foundation in moral and ethics education of citizenship presented in the new Australian curriculum. The educational theory of ‘reflective practice’ coined by Donald Schön two decades ago invokes a mindful approach to learning where professionals ‘reflect-in-action’ upon their learning as they face technical and ethical decisions in their working careers. There is no reason why a properly invoked civics and citizenship curriculum should not do the same for our pupils as they engage with new media as a laboratory for the greater challenges that real life presents.

See the full lecture at: https://journlaw.com/2013/08/29/social-media-risks-and-rewards-journlaws-public-lecture/

© Mark Pearson 2013

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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