By MARK PEARSON
A Supreme Court of Queensland committee has recommended a pilot program for the broadcasting of some sentencing remarks and appeal hearings and the appointment of a court information officer.
The Electronic Publication of Court Proceedings: Report – April 2016 was released this month, the result of eight months of deliberations by five Supreme Court justices (chaired by Justice Margaret McMurdo, President of the Court of Appeal), with input from a further two District Court judges.
The report followed the release of an Issues Paper on the topic in June 2015 and the consideration of public submissions, including one from yours truly, which I detailed in an earlier blog.
The latest report reviews practices in other Australian jurisdictions and internationally. It stems from media requests to film the sentencing remarks in the trial of Brett Peter Cowan for the murder of school boy Daniel Morcombe.
No standard procedures existed in Queensland to film sentencing remarks and the court was rare among Australian jurisdictions in that it had no designated information officer to assist in making arrangements. The delay deemed necessary to make suitable arrangements was one of the reasons that the application to film the judge’s sentencing remarks was refused.
As a result of the report’s findings, the courts will develop a pilot program for broadcasting of sentencing remarks and appeal hearings.
The committee noted that most respondents were concerned about the risk that recording and broadcasting witnesses and others in court would compromise the administration of justice.
As with similar reviews in other countries, the report does not favour broadcasting of witnesses’ evidence. However, the option will remain open for the judge in a particular case to allow the evidence of witnesses to be broadcast, with special consideration given to the position of victims and vulnerable witnesses.
The pilot program will require the development of suitable Practice Directions, logistical arrangements and guidelines to assist the judges and the media. Guidelines will address matters such as the exclusion of certain categories of cases and the location and field of view of cameras.
The decision on whether to allow the recording of sentencing remarks will remain the decision of the presiding judge in each case.
The report also recommends additional ways to better inform and educate the public, including:
- improved public and media access to court decisions, case summaries and documents to allow fair and accurate reporting; and
- the appointment of a Court Information Officer to assist the Supreme Court and the District Court in better informing and educating the public about the courts and the justice system.
When appointed, the officer will be responsible for the development of guidelines for the recording and publication of court proceedings, paving the way for the pilot program to start.
My own submission called for the installation of webcams in all courtrooms to allow as much public access to court proceedings as possible so that citizens could ‘virtually’ visit a courtroom just as easily as they might attend physically.
It suggested that, just as all citizens might wander randomly into a public court in session in the Supreme Court building, citizens should be able to tune in online to those same proceedings from the comfort and convenience of a remote location.
My own view is that recording more generally in society has become ubiquitous and that its potential to impact on judges and potential witnesses would be minimal given a. the extent to which people realise their words and behaviour are now being recorded in all walks of life; and b. the fact that wholesale livestreaming of all courts would be accommodated as a basic procedure – just an accepted facet of what is done there.
My submission featured these six hallmarks:
- Install inexpensive webcams in all courtrooms showing only the judge in the frame.
- Livestream all courtrooms using this single camera angle to a designated court website where citizens can access any courtroom at any time.
- Feature the kind of alert light found in radio studios positioned prominently inside and outside the courtroom to light with the sign “Court open and broadcasting”.
- Install a similar light and sign at the bench so the judge can control whether the recording is on or off (ie, whether the court is open or closed) and personnel are advised accordingly.
- Deal with mainstream media requests for special permission to film proceedings on a case by case basis, with the presiding judge determining the conditions attached to any permissions.
- Restrictions: As detailed above, my own view is that there are measures available to the courts to address any misreporting or sensationalised reporting based on the livestreamed material. However, if the court were concerned at the potential for the selective recording and rebroadcasting of any of the material it could feature an on-screen warning “© Supreme Court of Queensland: Not to be recorded or rebroadcast without the permission of the presiding judge”.
In short, this simple and relatively inexpensive solution would dispense with the need for editing because the livestreaming control would rest simply with the judge’s decision on whether to close or open the court for the complete trial (or for a given segment).
It would allow a mechanism for justice to be truly ‘open’ – both in the physical courtroom and in the virtual one – with all the ensuing public benefits of education and allowing justice to be seen to be done.
The committee gave my suggestion due consideration but rejected it on the basis of expense and for tipping the scales too far in favour of open justice over a fair trial and the due administration of justice. The report stated:
“Professor Pearson and others have advocated the introduction of a system whereby proceedings which are held in open court are recorded on webcams that are installed in all courtrooms and live-streamed. A variation on this is for the court to have its own dedicated internet channel for live-streaming.
It may be argued that, with new and relatively inexpensive technology to record and live-stream proceedings, all proceedings should be live-streamed. This simply would enable members of the public to view what would be seen by them if they exercised their right to attend a proceeding in open court. It may be relatively inexpensive to install webcams in most courtrooms showing the judge and to live-stream the images from this single camera angle to a designated court website which citizens can access. However, such a system would not regulate what was to be broadcast. Guidelines and procedures, and judges and court staff in individual cases, would need to address the evidence of witnesses, including vulnerable witnesses, which may be affected by the knowledge that what they say is being broadcast to the world. Any new system would need to control the transmission of certain evidence to the general public, including the identity of victims and children whose identification is subject to statutory prohibitions. It also would need to control the broadcasting of the horrendous details of certain crimes. Monitoring the recording and transmission of evidence under a system which live-streamed all proceedings in all courtrooms would entail a very substantial cost to the community.
Many cases in the superior courts are of no real interest to the general public. Few members of the general public attend them, the media do not report them and it seems unlikely that more than a few members of the general public would wish to view them if they were live-streamed. The resources required to establish a system to record and live-stream all proceedings and to apply appropriate restrictions on what is communicated to the general public cannot be justified in the light of anticipated demand.”
© Mark Pearson 2016
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.