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Covering the Courts: A Basic Guide for Journalists
This guide was originally published in 2006 by Prue Innes, a former court and legal reporter for The Age, and former Courts Information Officer in Victoria for 13 years.
These notes have since been edited and updated to reflect changes in legislation, technology and court policies.
A quick guide to the Court proceedings
Criminal offences are summary or indictable. Summary offences are dealt with by a magistrate. Indictable offences are dealt with by a judge and jury, and cover the more serious criminal charges.
If someone is charged with an indictable offence, a committal hearing is held in the Magistrates’ Court where the magistrate will assess the strength of the prosecution case and decide whether to commit the accused for trial. The charge could be dismissed at that point if the magistrate is not satisfied that the evidence would warrant a conviction. If someone is committed for trial, it will be to the County Court, for the vast majority of criminal trials, or to the Supreme Court, which deals with murder charges and other serious and complex offences, such as terrorism offences.
In committal hearings involving charges of rape and other sexual offences, the Magistrates Court Act provides for a closed court while the complainant is giving evidence.
A person sent for trial will appear in court and plead not guilty or guilty. In the Supreme Court, this person will appear on the daily list as ‘post committal directions’ within 14 days of being committed to stand trial.
Where the plea is not guilty, a trial will proceed, before a jury. Where the plea is guilty, the accused is then dealt with by the judge by way of plea hearing (pre-sentence hearing) and then sentencing.
It is important to remember when covering a trial that the accused, the person on trial, is innocent until proved guilty, and you should not state alleged crimes as fact. You may quote the prosecutor saying the accused marched into the bank, brandishing a shotgun, ordered everyone to lie on the floor and then emptied the safe. But your report must make it clear that you are quoting someone saying that in court, not stating it as fact without attributing it. It is safer to say, ‘A woman accused of snatching a tray of rings from a jewellery shop window ...’, or,‘The prosecutor told the jury that the woman snatched a tray of rings …’, than simply to say, ‘ A woman who snatched a tray of rings etc has gone on trial in the County Court.’ A plea of not guilty means the charges are being contested, whereas a plea of guilty means there is no contest that the crime has occurred, and the only task for the court is to impose sentence.
Reporting a trial before a jury needs care. This is the area where contempt is a particular concern. There are also rules which prevent any contact with jurors. A murder trial in the Supreme Court was aborted when an interstate reporter struck up a fairly innocuous conversation with two jurors at the end of the first day. He did not discuss the case at all, but the jurors and judge were concerned, and a new trial, with another jury, started the next day.
It is not possible now under Victorian law, and in most states, to reveal the secrets of the jury room, even if they are offered to you. The law prohibits the naming of jurors, and protects jury confidentiality.
It is also contempt to report anything said in court during a trial, in the absence of the jury. This is a ‘golden rule’ of court reporting. There are often parts of a trial called a voire dire, a term which loosely refers to a judge deciding whether evidence should be admitted and heard by the jury, or other legal argument about what can be said to the jury. The court will not be closed, and reporters are able to stay. But you must not report anything said in the absence of the jury. If there is anything newsworthy or interesting, it must wait until after the trial is over, and there is no longer a risk of the jury hearing material which has been excluded. (A recent trial was aborted when a media report disclosed information discussed in the absence of the jury. This was the first time a trial had been aborted through media fault in more than 10 years.)
It is common for pre-trial issues to be resolved by the trial judge in criminal trials, to save time and interruption once the case opens before a jury. They often involve issues such as admissibility of evidence. As with a voire dire, these proceedings should be regarded as part of the trial, and not able to be reported, because they are made in the jury's absence.
Sometimes a judge rules certain evidence to be inadmissible. The safe rule here is not to report it. If something has been reported, which is later ruled inadmissible, again, the safe rule is not to report it again. If you are writing for on-line, extra care needs to be taken.
Care is needed if a co-accused is to have a separate trial, or the accused faces several separate trials. Judges commonly make non-publication orders preventing or limiting reporting until all trials before juries are completed. If a related trial is imminent, your report of the first trial should be written with the need to prevent prejudice to the subsequent trials.
It is important always to include whether the accused has pleaded guilty or not guilty. At the Magistrates’ Court, an accused can also reserve a plea, or in some preliminary proceedings may not be required to enter a plea.
Another possibility is that the accused is pleading not guilty on the ground of mental impairment, and the court will need to be satisfied by evidence that this is the appropriate plea. In practical terms this means that the accused committed the crime but was insane at the time and not legally responsible for his actions.
There may be further reporting restrictions in accordance with the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Check with the judge’s associate or your legal advisers.
Contempt of Court
Contempt of court as it affects the media generally refers to reports and headlines, which could have a prejudicial affect on proceedings. In practice these are usually criminal proceedings, and particularly cases which are tried by a jury. But civil cases could also be affected. There are juries in some civil cases in Victoria.
Contempt of court is an area of the law that is designed to ensure that a fair trial is achieved, without unfair or prejudicial reports from the media. Competing against this is the public interest in a right to free speech. The law favors the right to a fair trial, and courts are always very keen to prevent 'trial by media'.
A common term is sub judice contempt, which simply means that while a case is before the courts, or proceedings are pending, that there are dangers for the media if reports reveal prejudicial material. Prejudice can simply mean strongly supporting the case one way or another, when it is up to the court to determine the issue. The contempt period begins when a charge is laid, a warrant is issued or someone is arrested (or with a civil case, when a writ is issued), and finishes when the proceedings are over. In a criminal case, the proceedings end when someone has been sentenced, if convicted of the crime, or acquitted. But technically the time expires when the time for an appeal has expired, because of the possibility of a retrial before another jury if an appeal succeeded.
Contempt does not just involve the possibility of influencing jurors by giving them information that they should not have, but can also cover influencing witnesses. It is unwise to interview people involved in cases, including witnesses, and publish those interviews before proceedings are completed.
Remember the golden rule: do not report anything said in the absence of the jury.
Contempt is really a fairly simple concept, although it is a complex area of the law. If you bear in mind that it is designed to ensure a fair trial, not affected by the media giving information to a jury which goes beyond what is said in court, or by comments about the people and issues in the trial, the rules are easy to follow.
Fining Nationwide News $75,000 for contempt of court for a comment about Mr Brian Quinn, then on trial, Justice Gillard said: ‘Mr Quinn was entitled to a trial by 12 members of the community, free from bias or prejudice, he was entitled to be tried by a jury who decided the case in accordance with the evidence free from outside influence. Trial by media is unacceptable. The sub judice rule in its application ... is simple, unequivocal and easy to comprehend. (It) forbids any publication of the circumstances of the trial or the character of the accused which had a tendency to prejudice the trial, and the only real exception ...is a fair and accurate report of the proceedings. All members of the media would be well-advised to proceed on the basis that other than reporting the actual proceedings in the court, nothing should be stated in the media concerning the trial, the court, the accused or witnesses.’
When cases that have received extensive publicity at the time of the offence get to trial, reporters should be careful not to background the case beyond what is told to the jury. This is something of particular relevance to television reports using file footage.
Reporters should also avoid stating that accused people on trial are in custody, or giving a prison address, unless it is clear to the jury that someone is in custody, or was at the relevant time, because the charge involves an assault in prison, for example. It is considered prejudicial to the accused to reveal either that he was denied bail, or is in jail on another offence. Photographs of accused people showing them in handcuffs getting out of a prison van, could also be a problem before a verdict has been reached, if the jury does not know that the accused is in custody.
In summary, reporters should be extremely careful to avoid:
- Revealing prior convictions
- Breaching any non-publication order
- Reports that imply guilt or innocence of the accused
- Reports including interviews that could affect witnesses
- Comments, as distinct from reports of the court case
- Pictures of the accused where identity is an issue
- Reporting evidence etc in the absence of the jury
- Any contact with jurors
If in doubt, seek legal advice.
Defamation and privilege
The other area of the law that concerns the media and court reporting is defamation. A detailed discussion of defamation is not necessary here, but for court reporting purposes, a very basic definition is that something is defamatory if it is harmful to someone's reputation, and is published to a third party, which would cover any publication by the media.
Carefully written court reports are protected from defamation. The law gives a protection to reports of what is said in court, so that material which is otherwise defamatory can be safely reported. This protection, called a privilege, covers reports of court proceedings that are faithful and accurate, so there is no danger of being sued for defamation for a court report, provided it is fair and accurate. It must therefore not be one-sided, for example, it cannot report the prosecution case prominently and ignore the defence; and the facts must be right, as stated in court, and your report must be neutral. As it is highly unlikely you will be reporting the entire proceeding, but only parts of it, it is important to say in your copy, ‘The trial (or hearing) is continuing’, which indicates it is not a complete report.
There is little room for interpretive or creative reports of court cases, particularly when there is or will be a trial by jury. These should wait until later, until verdict or more preferably, sentence has been delivered. Cases before a magistrate or a single judge may allow more latitude.
The privilege applies only to what is said in court, and not to comments made outside the court. Comments may be defamatory, and they may also be prejudicial, so care is needed. It is important that your copy makes it clear what is said in court and what is said outside. The privilege also applies to documents used in court.
Bail justices and out of sessions hearings: Out of court sessions are usually conducted by bail justices, or if appropriate, by a magistrate on 24 hour call. These hearings are open, and should be accessible to the public, including the media. Reporters are able to be present in most instances, subject to security considerations in particular cases. They can be regarded as quasi-court proceedings, however, extreme caution should be exercised before reporting references to prior convictions or admissions made by an accused, without seeking legal advice.
Restrictions on reporting
There are several hundred statutory restrictions on reporting, in numerous Acts of Parliament. Reporters should make themselves familiar with the more common and important pieces of legislation and seek legal interpretation. Legislation is often reviewed and amended by Parliament. Reporters need to keep abreast of any amendments.
In particular, reporters should familiarise themselves with:
Section 4 of the Judicial Proceedings Reports Act: This prohibits the direct or indirect identification of people who are the victims of sexual assaults.
For example, where the victim is related to the offender, and the charge is sexual assault by a boyfriend, partner or husband, or a male family member (incest), the offender cannot be named, because to do so would identify the victim. There are also restrictions on what may be reported at committal hearings of sex offence cases.
Children Youth and Families Act 2005, Section 534, Restrictions on Publication of Proceedings.
Section 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act allows a judge to prohibit identification of a person seeking to have a custody order reviewed by the court, and also of other affected people.
Family Violence Protection Act 2008, Sections 166-169, prohibits publication identifying parties to a proceeding under this Act.
Victims of Crime Assistance Act 1996, prohibits reporting of all evidence and the identity of parties.
Serious Sex offenders (Detention and Supervision) Act 2009, Sections 184-186.
Magistrates’ Court Act 1989, Section 126 (2) (b).
County Court Act 1958, Section 80.
Supreme Court Act, Sections 18 & 19.
Section 121 of the Family Court Act: This prohibits the identification of people involved in cases before the court, including children, but it does not close the court. The prohibition on identification extends to Family Court cases heard elsewhere, such as an appeal to the High Court. A judge may grant an order under Section 121 that permits people to be identified, and frequently does, for example, when children have been abducted.
Section 129 of the Health Act: This allows a magistrate to restrain publication of the name of someone who is HIV positive. It is not an automatic provision but applies if the magistrate grants an order to do so. The Magistrates’ Court Act allows a magistrate to protect the identity of victims of consensual sexual acts with HIV positive people.
Please note that someone does not need to be named to be identified. Details of the circumstances can also lead to identification, which could breach, for example, the prohibition on identifying sexual assault victims or children involved in Children's Court proceedings.
With photographs or footage, concealing the face may not be sufficient to prevent identification. Distinctive clothing, a broken arm, or other visual feature, may identify someone.
There are three categories of witnesses where care should be exercised, even if a non-publication order has not been made. Often it is not a good idea to reveal the identity (including photographs) of an undercover police officer or a police informer, as this could put them at risk. It is an offence under the Witness Protection Act 1991 (section 10 (5) to disclose information about the identity or location of someone in witness protection, or even to disclose that a person is on the program.
All courts have powers to make non-publication orders which may prohibit reporting of all or specified parts of proceedings. It is contempt of court to disobey an order. If you think it is unreasonable, apply to the court to have it lifted or modified, but do not ignore an order because you disagree with it.
Sometimes people in civil cases, and children, are referred to simply by initials, to protect their privacy. This should be respected, even if it is not covered by a pseudonym order.
Finding your way around the Courts
Who's who in court and where to find out
Each judge has an associate, who sits in front of the judge in court. Lists of judges’ associates are on the courts’ websites. For the Supreme Court, view the judicial contacts list. Magistrates have a clerk. These people are generally very helpful with information like charges, names, addresses and so on. The lawyers representing parties in court are barristers and solicitors. Barristers wear wigs and gowns in higher courts. A Queen's Counsel (QC) or Senior Counsel (SC) is a senior barrister, also often referred to as a silk and often wearing a black ribbon rosette hanging from the back of their robe.
In a criminal trial, the prosecutor sits at the end of the bar table closest to the jury box, and the defence is at the other end of the bar table.
In general these are public documents which you may examine, and photocopy. In the Magistrates’ court, charge sheets and hand up briefs should be made available to you, but with hand-up briefs, you should be aware of possible prejudice from using material in them like confessions and prior convictions.
The media can apply for access to documents which have been tendered in Magistrates' hearings. There is a form to be filled out seeking access. Do not publish anything prejudicial, such as prior convictions and confessions, without legal advice.
The Magistrates’ Court registry will provide basic details of names, charges, and outcomes if the hearing is finished, but may regard people's addresses as personal information and not release them. These details are given in open court in the Supreme and County Court, and can be checked with the judge's associate or prosecutor.
The Magistrates Court and the Children’s Court have introduced protocols for reporters applying for access to material tendered in court, for permission to use a personal tape recorder, and for access to transcripts. Reporters should submit the appropriate forms.
The safe position is not to regard these documents as privileged until they are part of the proceedings in court, so you should be cautious about quoting clearly defamatory material from a writ when it is filed, or affidavits etc prepared but not yet before the court. It would be safe to do so when the document was before the court.
More information on access to documents in the Supreme Court can be found in the Media Policies & Practices manual.
The registry for the Supreme Court is at Level 2, 436 Lonsdale Street, opposite the Court of Appeal building. All civil files except, those which marked confidential, may be searched. Search fees are generally waived for media.
The County Court registry is on the ground floor of the main court building on the corner of William and Lonsdale Streets, and files may be inspected for a fee.
The Magistrates’ Court's registries are on the second floor. However, the Co-ordinators Office is on the ground floor, and is the most useful office for media information. The co-ordinators also have a detailed copy of the law list. The court files are not available to be searched in the Magistrates Courts but the media may apply to see tendered documents.
Daily Law Lists
The Age publishes the daily lists for Melbourne courts each day. The lists are also posted in the foyers of the Supreme, Federal, County and Magistrates’ Court. In the Magistrates’ Court a more detailed list, showing the main charges, is not publicly posted but is available from the co-ordinator’s office, on the ground floor, and there are copies for the media. All of the lists are on the Internet.
You should be aware that in the Supreme Court, all judgments, sentences and significant rulings by judges in trials are available on the Internet. Access is available via the Supreme Court's website and at AustLII (External link). Most criminal sentences are now audio webstreamed and can be listened to via the web. It is also worth checking for judgments and sentences on the County Court and VCAT sites, some of which are available on the same day.
Etiquette in Court
It is customary to bow to the magistrate or judge when you enter or leave the courtroom. Please try to move around the court as unobtrusively as possible. There are usually press seats provided. If you enter (or get up to leave) the court as the oath is being administered to a witness, stand still until the oath is finished. Make sure all mobile phones or PDAs are switched to silence.
More information on electronic equipment can be found in the Supreme Court’s Media Policies & Practices manual.
Judges of the High Court, Supreme Court, Federal Court and Family Court are called Justice Smith. Judges of the County Court are called Judge Smith. Magistrates are the magistrate, Mr Ted Smith, or the Chief Magistrate, Mr Ian Gray. It is important to get these details correct, because mistakes reflect against you and your organisation. The Supreme Court also has Associate Judges (formerly Masters), who perform a range of judicial functions. They are called Associate Justice Smith, and in court, addressed as Your Honour. Their hearings are open like any other court hearing. The Supreme Court Associate Judges sit in courtrooms at 436 Lonsdale Street, but will also hear matters in the main trial division and Old High Court buildings.
If you are speaking to a judge, call him or her Your Honour. Call a magistrate Your Honour in court, but otherwise Mr or Ms Smith.
The Victorian Director of Public Prosecutions is Mr John Champion QC, who is responsible for prosecuting criminal trials and pleas in the Supreme Court and County Court, and committal hearings in the Magistrates’ Court.
Further recommended reading
The ABC All-Media Handbook, is an extremely helpful little book, highly recommended.
The Journalist's Companion to Australian law by Geoffrey Gibson, published by Melbourne University Press, is a very helpful book written by an adviser to the ABC.
Media Law in Australia by Armstrong, Blakeney and Watterson, is excellent and deals clearly with the subject for laymen.
The Journalist’s Guide to Media Law by Mark Person is an excellent book blending practical advice with legal cases, published by Allen & Unwin.
The Law of Journalism in Australia by Sally Walker is a classic text and excellent, but more technical.
A very helpful and practical book, aimed directly at court reporters, is Court Reporting in Australia by Peter Gregory, who was chief court reporter at The Age for some 17 years. It is published by Cambridge University Press.
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|Author:||Supreme Court of Victoria|
|Publisher:||Supreme Court of Victoria|
|Date of Publication:||2011|
|Copyright:||State of Victoria, 2011|