Bill Oxford: Unsplash
Reporting on court trials, processes and proceedings requires a degree of specialist knowledge and understanding. We only have to look at the continued fallout from the recent George Pell trial in the Victorian Supreme Court, and the choice several publications made to breach suppression orders, to recognise the problems involved in the intersection of law and media.
Reporting on the courts is a key part of the accountability process in the judicial system, but there are some laws in place that limit the scope of what journalists can cover.
Why should we pay attention to the court and court documents:
While there might not always be the glitz and glam of high-status trials, court documents are a great source of story ideas for investigative journalists. According to media researcher Roy Shapira: “Court documents, depositions, and regulatory reports are often the most instrumental sources of accountability journalism”.
Media scrutiny allows the public to engage in the passage of justice and can lead to wide-ranging reforms.
The central theory that Justice must not only be done, it must also be seen to be done (R v Sussex Justices ) establishes that court reporting can raise or lower the public perception of justice being served.
Essentials to be aware of
Sub Judice: (meaning under-justice). The period that begins when a person is either arrested, has charges laid against them, or is issued with a warrant, and ends when the case has finished in courts. During the sub judice period, limitations apply to what can be published about the case.
Sub Judice Contempt: A law that a judge can use to lay charges, make judgement and apply a sentence to anyone who publishes information that could prejudice or influence a case during the sub judice period.
Suppression Orders: Can be applied by judges to some or all parts of a proceeding. If a journalist disobeys suppression orders, the judge presiding over the case can charge the journalist with contempt of court.
NEVER report what is said in the absence of the jury in trial-by-jury cases.
NEVER attempt to use a recording device in a court room without receiving permission beforehand.
And remember, the onus is on journalists to ensure materials published don’t violate suppression orders or other relevant legislation.
To help you out with your court reporting here is a quick guide to the court structures in different Australian states and in NZ.
The Queensland court hierarchy starts with the Magistrates Court, which escalates to the District Court, and finally ends with the Court of Appeal. Similar to most other state and federal jurisdictions, Queensland courts prohibit the use of digital devices for recording and photography.
The media page for Queensland courts provides information on COVID-19 changes to operations, daily law lists for all courts and contacts for media representatives. The Queensland Sentencing Advisory Council has additionally published a 36-page Court Reporting Guide which goes into further detail on specific etiquette, lay-out of the court and explanation of court processes.
Queensland courts also allow users to search for a court file on their database. These documents include eCourts files and access to coronial investigations.
The court hierarchy in Victoria begins with the Magistrates Court for the least serious crimes, and escalates to the County Court, Supreme Court and eventually the Court of Appeal and High Court of Australia.
The Magistrates court has its own page providing information for the media, including how to access the registar at the Magistrates’ court venue. Journalists can request access to documents through a media application.
Victorian county courts cover the majority of criminal trials, besides serious crimes such as murder or terrorism. Because of the more complex nature of these cases, the county court has both a Covering the Courts: A Q & A guide for journalists, and a more formal County Court of Victoria Media Guidelines available as resources. Both of these resources include directions on referring to judges, reporting on alleged crimes, and directions for filing media enquiries and media request forms.
The Victorian Supreme Court has its own Guidelines for media policy and practices when reporting on cases. These include contacts for media enquiries, instructions on receiving copies of transcripts of criminal court proceedings and language or practices to avoid in reporting.
New South Wales
New South Wales (NSW) court hierarchy again involves three general courts, beginning with the Local Court, and escalating to the District Court and the Supreme Court. The Supreme Court of NSW’s media page provides details of media contacts, applications to access court documents. The NSW Supreme Court allows journalists to use iPads, laptops and smartphones for notes – but does not allow filming or recording to take place. Journalist’s can apply to film criminal sentencing proceeding and final decisions in civil matters.
Court lists of all courts are accessible through the court lists section of the NSW Communities and Justice Division. Access to court files is available through contacting the relevant media contact for each jurisdiction, further information on access to the courts is available on the media contacts and information page.
Western Australia’s court hierarchy follows a similar structure to the aforementioned states, moving upward from the Magistrates Court to the District Court to the Supreme Court. Other court’s within the hierarchy are shown in the diagram above.
The Supreme Court of Western Australia has released an official Guidelines for the Media which cover reporting on all Western Australian courts. This 21-page media guide contains court locations, instructions on requesting transcripts or accessing documents, and conduct in court. The guideline also directs journalists towards the eCourts Portal, a public website listing daily court cases in every courthouse in the state. Listings include ‘the charges, jurisdiction, next court date, hearing type, location and current plea’, allowing reporters to easily track cases’ progress.
The Media and Communications Office of the Courts Administration Authority of South Australia published a Guide for Media Reporting in South Australian Courts in May 2020. The guide is an up-to-date document covering media access, court hierarchy, statutory limitations, suppression orders and information on reporting hearings.
The media page for the South Australian courts includes information on the release of findings, sentencing and judgements of the higher courts, and daily case lists. To request specific documents, journalists can fill in the application for access by media to court documents.
Tasmania’s court hierarchy differs from other states and territories, only involves a Magistrates court and a Supreme court. Unlike many other courts, audio recording is allowed in the Tasmanian magistrates’ court after discreetly informing the Magistrate’s clerk of your intentions, but for personal reference only. The magistrate may prohibit audio recording at any time, the recording’s should not be supplied to anyone outside of your media organisation, and only hand-held micro-cassette recorders may be used. Information for journalist’s on the Magistrates Court can be found here.
The Supreme Court of Tasmania has its own easily navigable page for the media which includes recent suppression orders, media guidelines, court etiquette and reporting restrictions.
Australian Capital Territory
Similar to Tasmania, the Australian Capital Territory’s (ACT) court hierarchy operates with just a Magistrates and Supreme Court. The lengthy Media Information Package outlines the structure of these courts, as well as necessary contacts, media requirements and processes to access court documents. The courts’ webpage provides further detail on attending and reporting on individual courts.
The Northern Territory structure differentiates from both other states and the ACT and Tasmania, having just a Local Court (previously known as a magistrates court) and a Supreme Court. The Media Policies and Practices for local courts and tribunals details restrictions on publications, court media enquiries and accreditation needed. The Supreme Court’s media site additionally contains contacts, recent and searchable suppression orders, forms to access court files and information on accreditation.
High Court of Australia:
The High Court’s judgements and arguments are open to the public until 4:30 pm each day, court etiquette requires visitors to stay in the courtroom for a minimum of ten minutes and bow on entry to the courtroom and again on leaving. Cameras, radios, pagers, tape players, tape recorders, mobile phones and all other electronic equipment must be surrendered at the door.
For those unable to attend court proceedings in person, the High Court has a database of all cases decided from February 2001 that are gradually being updated with online video recordings. They also have a database of current cases, to access copies of documents for inspection you must pay a prescribed fee and register using the instructions provided. From October 1, 2013, the High Court has also made available audio-visual recordings of full court hearings.
Courts in New Zealand:
The Ministry of Justice New Zealand has produced a 77-page media guide which explains each aspect of the court and tribunal system, including different courts and their functions. It also explains media identification, electronic communication, addressing the judge, restrictions on reporting and detailed information regarding access to court information.
The Courts of New Zealand have a smaller two-page In Court Media Coverage Guide which explains more succinctly court guidelines. Much like Australia, digital recording devices are not allowed without pre-approval. Journalists must make an Application for in-court media coverage at least 10 working days before you want to access the court to be able to make recordings.
Journalists can access court judgements through the Ministry of Justice’s Judicial Decisions Online Search. The search function covers High Court decisions from 2005, Court of Appeal decisions from 2003, and Supreme Court decisions.
The application to access court documents is available within access to court information, along with information regarding the application process and court lists.
Much like Australia, New Zealand has specific rules regarding reporting on Family courts. These are available in ‘A Guide for Media Reporting in the Family Court’, produced by retired Principal Family Court Judge Laurence Ryan.
Other Resources on Reporting Courts
The Australasian Legal Information Institute (Austlii) contains copies of all state and federal trials, cases and legislation, law reform commission material and unreported judgements across all jurisdictions. When using Austlii to search for cases it is important to be aware of abbreviations, names and unusual spellings as the database sits through a large amount of information.
Poynter journalism has an excellent article on How to cover a court trial: 6 tips for journalists which outlines more practical processes to get familiar within the courtroom. While Poynter is US-based, and US and Australian law differ in few ways, this are good generic tips that include: creating a network, knowing how you will keep records of your notes, and which jargon to cut from reports.
The News Manual Online contains an additional chapter on Contempt & Court Reporting in Australia outlining the processes involved in reporting a case without committing contempt. The chapter outlines the main risks for journalists, rules regarding minors, penalties and essential definitions.
The ABC published an article in 2018 interviewing journalist and author of ‘The Court Reporter’ Jamelle Wells. Wells discusses the highs, lows and challenges of court reporting and provides tips and insights for readers.
Upstart has also published an explainer on the “dos and don’t’s” for journalists regarding contempt of court. The article goes into detail on the classifications of contempt and subsequent consequences, and how to avoid coming into contempt of court to begin with.