INTRODUCTION

4.1 The televising of the proceedings of courts has occurred on a number of occasions in Australia and it is now appropriate to consider the desirability of this practice and the type of proceedings that may be suitable for television coverage. Television is obviously a significant part of the means whereby information is conveyed to the Australian public. We saw in the previous chapter that in 1981,97 percent of households had at least one television set and that the average city household had its television set switched on for 31 hours 48 minutes a week. ¹ Moreover, it is now widely recognised that important institutions in Australian society should be open to scrutiny by way of television coverage. For example, the televising of the proceedings of the Commonwealth Parliament is now under consideration by the Joint Committee on the Broadcasting of Parliamentary Proceedings. ²

4.2 In this chapter we shall first outline the present law in New South Wales concerning the televising of the proceedings of courts and commissions and then discuss the United States experience of televised court proceedings. This is followed by an examination of precedents in Australia where cameras have been allowed into courtrooms. The concluding sections discuss the reasons for and against televising the proceedings of courts and commissions and outline a series of policy questions on which we invite submissions.

THE PRESENT LAW

4.3 The existing law in New South Wales concerning the televising of the proceedings of courts and commissions is similar to that concerning the broadcast of a sound recording of these proceedings. Thus, any court or commission may, pursuant to its inherent power to control and regulate its own proceedings, allow its proceedings to be televised. The occasions where to our knowledge, court proceedings have been televised, are discussed later in this chapter.

4.4 Although there is no specific statutory prohibition on the television broadcast of the proceedings of courts and commissions, ³ any broadcast is subject to the laws, relating to contempt. We saw in Chapter 3 that any “act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts” will constitute contempt of Court. ⁴ A recent case in which a television station was held to be in contempt of court involved the broadcast of a film sequence identifying a person accused of a criminal offence where it was thought that the identity of the accused may be an issue for determination by the jury. ⁵

THE UNITED STATES EXPERIENCE OF TELEVISED COURT PROCEEDINGS

4.5 By the mid 1970’s, there were few American States that permitted representatives of the news media to televise the proceedings of courts. ⁶ However, by 1983, some 36 States had allowed limited television coverage of court proceedings. ⁷

4.6 The prohibition on allowing cameras into court rooms dated from September 1937 when the American Bar Association adopted Canon 35 of its Judicial Ethics:

“Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.”

4.7 A canon of the American Bar Association does not carry the weight of law. In Lyles v. State, ⁹ the Oklahoma Criminal Court of Appeals characterised American Bar Association canons as follows:

“The adoption of the canons of ethics by the courts did not give the canons force of law. They are nothing more than a system of principles of exemplary conduct and good character... They are subject to modification to meet the condition of changing times in keeping with the constitutional rights of the people.” ¹⁰

“... has of itself no binding effect on the courts but merely expresses the view of the Association in opposition to the broadcasting, televising and photographing of court proceedings.” ¹²

4.9 Not all States have adopted Canon 3A(7) either by Supreme Court Rules or legislative enactment, and have consequently been free to encourage experimental use of electronic media in the courtroom. In 1978, a committee of the National Conference of Chief justices recommended that Canon 3A(7) be amended to allow radio, television and photographic coverage of trials provided certain guidelines were followed. This recommendation was adopted by the National Conference of Chief Justices but a similar proposal was rejected by the American Bar Association in February 1979. ¹³

4.10 Television cameras are prohibited from federal courtrooms pursuant to Rule 53 of the Federal Rules of Criminal Procedure. ¹⁴ It is to be noted however, that the federal rules allow the use of electronic media, such as video cameras, for the purpose of presenting evidence in court. ¹⁵ In United States v. Hastings, ¹⁶ the United States Court of Appeals (Eleventh Circuit), held that Rule 53 does not violate the First Amendment to the United States Constitution which provides that “Congress shall make no law... abridging the freedom of speech, or of the press.” The court rejected the appellant s suggestion that the First Amendment extends to giving the news media the right to televise federal criminal trials and stated that “just because television coverage is not constitutionally prohibited does not mean that television coverage is constitutionally mandated”. ¹⁷

4.11 One experiment with the use of television commenced in the State of Florida in July 1977 and continued until June 1978. During that year, the electronic media were permitted to cover all judicial proceedings in Florida, both civil and criminal, without the need to obtain the consent of the participants, subject to certain standards being adhered to. ¹⁸ The experiment was supervised by the Supreme Court of Florida which stated at the conclusion of the experiment “that on balance there is more to be gained than lost by permitting electronic media coverage of judicial proceedings subject to standards for such coverage”. ¹⁹

4.12 Subsequently, a revised Canon 3A(7) was adopted in Florida which permits electronic media and still photographic coverage of public judicial proceedings, subject to the authority of the presiding judge to control the conduct of the proceedings, ensure decorum and prevent distractions and ensure the fair administration of justice. The Supreme Court promulgated guidelines which specify the electronic equipment to be used and the manner of its use. For example:

• no artificial lighting is allowed;
• only one camera and one camera technician may be present in court during the proceedings and any video tape recording equipment which is not a component part of a television camera must be located outside the courtroom;
• any existing audio system in a court must be used by the media;
• the equipment may not be moved during the proceedings; and
• any “pooling” arrangements among the media required by the limitations on equipment and personnel are the sole responsibility of the media. ²⁰

• Alabama has allowed permanent television coverage of all courts since 1976 with the written consent of the parties. Coverage must be suspended by the presiding judge if a witness who is testifying, a juror, a party, or a legal representative, expressly objects to coverage. The Alabama Supreme Court must approve in advance a plan for each courtroom where coverage is to take place, including the type and location of equipment and the movement of media personnel.
• Alaska has allowed permanent television coverage in trial courts and the state Supreme Court since 1979 following a one year experiment. The consent of the presiding judge and counsel for all parties is needed and coverage is prohibited of any witness, party or juror who objects.
• Arizona introduced permanent television coverage of trial and appellate court proceedings in July 1983 after an experimental program that commenced in 1979. Coverage is allowed of both civil and criminal proceedings.
• Arkansas has allowed permanent television coverage of trial and appellate court proceedings (both civil and criminal) since 1982. Coverage is prohibited of any participant who objects to being filmed.
• Colorado never adopted the American Bar Association canon and has allowed television coverage of courtroom proceedings with few guidelines since 1956.
• Florida allows coverage in all courts and the consent of the participants is not required. ²²
• Georgia has allowed television coverage of all courts since 1977 with the written consent of the legal representatives and the parties (if present). Plans for coverage of courts other than the Supreme Court must be approved by the Supreme Court and the presiding judge.
• Idaho has allowed permanent television coverage of the proceedings in its Supreme Court since 1979 following an experimental program that commenced the previous year. Television coverage of proceedings in the Court of Appeals commenced in 1982 on an experimental basis.
• Iowa has allowed permanent television coverage of trial and appellate proceedings (both civil and criminal) in the Supreme Court and Court of Appeals since January 1982. The procedural rules adopted by the Supreme Court limit coverage of jurors, victims and some witnesses and require the media to give 14 days notice of their intention to cover a trial.
• Kansas allows television coverage of Supreme Court and Court of Appeals proceedings provided the consent of parties and witnesses is obtained. Following an experimental program that commenced in 1981, permanent television coverage has been allowed since September 1982.
• Kentucky introduced permanent television coverage of trial and appellate court proceedings in 1981. Both civil and criminal proceedings are permitted to be televised.
• Maryland has allowed permanent coverage of civil proceedings in appellate courts since July 1982. An experimental program allowing coverage of civil proceedings in trial courts commenced in 1981 and has been extended until 1984. Television coverage is not permitted in a trial court unless all parties to the proceeding have given their written consent Television coverage of all or any part of a proceeding may be prohibited, terminated or limited on the motion of the presiding judge or on the request of a party, witness or juror in the proceeding, where the judge finds “a reasonable probability of unfairness, danger to a person undue embarrassment, or hinderance of proper law enforcement would result if such action were not taken.” ²³
• Massachusetts allows coverage of trial and appellate court proceedings without the consent of any of the participants. A judge “may limit or temporarily suspend such news media coverage if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence”. ²⁴
• Minnesota has allowed permanent television coverage of proceedings in the Supreme Court since April 1983, following an experimental program that commenced in 1978. A two year experimental program that allows coverage of civil and criminal proceedings in trial courts commenced in 1983.
• Montana allows coverage of all courts but the presiding judge may prohibit coverage if the reasons for doing so are stated.
• New Hampshire has allowed coverage of trial and appellate court proceedings (both civil and criminal) since 1978 without the consent of the participants. There is no coverage of jurors in a criminal trial unless the presiding judge has given prior approval.
• New Jersey allows coverage of appellate and trial courts without the consent of the participants. Once permission has been granted, a pre- trial conference must be held between the presiding judge, attorneys and participating media personnel to discuss guidelines. Coverage of appellate arguments and ceremonial proceedings is permitted on a permanent basis while other coverage is on an experimental basis.
• New Mexico has allowed television coverage of criminal and civil proceedings in the Supreme Court, Court of Appeals and District Courts since January 1983. It is specifically provided that coverage of the proceedings shall not be limited by the objection of counsel or parties but the court may limit or prohibit coverage for good cause.
• New York has allowed coverage of appellate court proceedings on a systematic basis since 1981 and at the same time commenced an experimental program of coverage of civil trial court proceedings. The first experimental coverage of the New York Court of Appeals occurred in October 1979. ²⁵
• North Dakota has allowed coverage of proceedings in the Supreme Court since 1980 following the conclusion of an experimental program that commenced in 1979.
• Ohio has allowed coverage of civil and criminal proceedings in both appellate and trial courts since January 1982. No coverage is permitted of participants who object.
• Oklahoma has allowed coverage of civil and criminal proceedings in both appellate and trial courts since February 1982. No coverage is permitted of participants who object and the consent of legal representatives is required in criminal trials.
• Tennessee allows coverage of all courts although the Supreme Court must approve a plan outlining the specific details of proposed television coverage in any courtroom. Coverage of criminal proceedings is contingent upon obtaining the written consent of all accused persons involved. In any proceeding, the presiding judge must suspend coverage if a participant objects. Objections by a juror or witness will suspend coverage of that person while any objection by a legal representative or party will suspend all further media coverage.
• Washington has allowed coverage of all courts since 1976 without the need to obtain the consent of participants. Coverage is prohibited of any individual witness, juror or party who expresses an objection to the presiding judge prior to the commencement of proceedings.
• West Virginia adopted rules in May 1981 which allow permanent television coverage of all state courts. The consent of parties is not required although a party, witness, or attorney may object to coverage of any portion of the proceedings and the judge is required to rule upon such an objection The presiding judge is empowered to terminate coverage of any portion or of the remainder of the proceedings, if the judge determines that coverage will “impede justice”. ²⁶
• Wisconsin has allowed coverage of all courts without the consent of the participants since 1979. Coverage of jurors is prohibited unless individual consent is obtained.

4.15 The United States Supreme Court has on several occasions considered whether a defendant could be deprived of the right under the fourteenth amendment to the Constitution to due process of law by the televising and broadcasting of a trial. The question of allowing the news media to televise the proceedings of courts has frequently involved consideration of the media’s claim to a right under the first amendment to publish news relating to the judicial process and an accused person’s right to due process of law and equal protection of the law under the fourteenth amendment.

4.16 In Estes v. Texas, ²⁸ the Supreme Court held by a majority of five to four that the defendant s right to a fair trial guaranteed by the fourteenth amendment was infringed by the televising of the court proceedings. Mr. Justice Clark delivering the opinion of the Court, outlined four situations where televising court proceedings could create unfairness to the accused.

• Interference with the jury: jurors might face enormous community pressure where the televising of proceedings has created intense public feeling. Moreover, the presence of television cameras might prove to be a distraction to jurors.
• Interference with witnesses: the quality of testimony might be impaired where proceedings are televised and some witnesses may be either embarrassed or demoralised, while others may over-dramatise the evidence they present to the court. Furthermore, witnesses may be reluctant to appear if the proceedings are to be televised.
• Impact on the trial judge: the judge’s task is made more burdensome with supervision of television crews. Telecasting is also particularly damaging where the judge is elected, as telecasting of a trial may become a political weapon.
• Impact on the defendant: the presence of a camera can be considered a form of mental, if not physical, harassment for the defendant, who should be without the distraction of wide public surveillance. ²⁹

“... the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process.” ³⁰

“... the advances in these arts permit reporting by... television without their present hazards to a fair trial we will have another case.” ³¹

“... consistent with constitutional guarantees, a state may provide for radio, television, and still photographic coverage of a criminal trial for public broadcast, notwithstanding the objection of the accused.” ³²

"... is not to be read as announcing a constitutional rule barring still photographic, radio, and television coverage in all cases and under all circumstances. It does not stand as an absolute ban on state experimentation with an evolving technology, which in terms of modes of mass communication was in its relative infancy in 1964, and is, even now, in a state of continuing change.” ³⁵

“The Court’s opinion... refrains from positively endorsing television in the courtroom as harmless. it concedes that significant dangers to fair trial may exist but requires more satisfactory proof of such dangers before an absolute ban would be justified.” ³⁶

4.20 The occasions when the proceedings of Australian courts have been recorded by cinematograph or television cameras (as opposed to still photography) can be conveniently placed in three categories. These are, first, where the proceedings of a court have been filmed and later broadcast on televisions secondly, where the proceedings have been filmed for the purpose of incorporation into a commercial film; finally, where court proceedings have been filmed via a closed circuit television system. We do not claim to have an exhaustive list of all such occasions, but we outline those that have come to our attention as noteworthy precedents.

Televised Court Proceedings

4.21 In February 1981, Mr. D. Barritt S.M., allowed the news media to televise his findings in the first Coronial Inquiry into the Death of Azaria Chamberlain. Mr. Barritt stated that he would take the unusual step of allowing himself to be televised while announcing his findings because of the intense public interest that the inquest had generated, and because of the prevalence of “unfounded” rumours that had circulated in relation to the inquest. ³⁷

4.22 Mr. Barritt spoke for 45 minutes and the main condition that he imposed on the news media was that only he be filmed. According to Mr. Barritt, he did not believe that it was necessary to obtain the consent of either the parties to the inquest or the Northern Territory Attorney General. The Assistant Crown Solicitor, who was assisting the Coroner, objected to the decision to televise the findings after receiving instructions from the Crown Law Department.

4.23 One camera was used to record the findings and the recording was transmitted to Brisbane where a “split’ occurred so that all television stations could obtain a copy. Artificial lighting was used in the courtroom while the camera was operating.

4.24 In July 1981, part of the proceedings of a case in the Hobart Court of Petty Sessions were televised by the news media. ³⁸ The case concerned the legality of a major retailer trading on Saturday afternoons and the presiding Magistrate, Mr. E. Sikk, allowed the opening of the case by the prosecution and the defence to be televised because of the considerable public interest in the matter. Both the Crown Advocate and counsel for the defence objected to the decision of the Magistrate who subsequently affirmed his decision to allow part of the proceedings to be televised. Mr. P.R. Cranswick, who appeared in the case for the defendant company, has advised us that:

“From my discussions with the Senior Magistrate since that case I consider that it is fairly unlikely that there will be a repeat performance in the Court of Petty Sessions at Hobart, although it seems to be acknowledged that it is within the discretion of the presiding Magistrate in any particular case as to what is allowed.” ³⁹

4.26 In both courts where filming was allowed, two cameras were used, one at the front of the court and one at the rear. No artificial lighting was used and microphones used by the television personnel to record the proceedings were attached to existing court microphones. Filming was undertaken only with the permission of all parties and their legal advisers. On the day that the Social Security Conspiracy case was filmed, no witnesses were giving evidence and only the counsel for one of the defendants was being heard. The presiding magistrate, Mr. Brown, S.M., has advised us that as a matter of courtesy he asked the then State Attorney General for his permission to televise the proceedings. The Attorney General did not object. Mr Brown also stated that he considered that the televising of court proceedings was a matter solely for the presiding magistrate pursuant to the inherent power of a magistrate to control the proceedings of his court. ⁴¹

4.27 Mr. Brown further advised that he had given permission for a Sydney commercial television station to film parts of the Social Security Conspiracy case for later broadcast The parties gave their consent and the then Attorney General was asked as a matter of courtesy. The magistrate imposed a condition that there was to be no filming of witnesses or defendants. Sound recording was also permitted. An edited extract of the film was broadcast on a news program and was later used as file film.

4.28 In November 1981, the A.B.C. broadcast a “4 Corners” program titled “Stop Thief” concerning burglary in Australia. Part of a trial for burglary before the Senior Judge of the South Australian District Criminal Court was filmed and later broadcast as part of the program with the consent of the presiding judge and all parties, including the defendant. ⁴²

4.29 Decisions of the Commonwealth Conciliation and Arbitration Commission in national wage cases have been filmed and later broadcast on television. Sir John Moore, the President of the Commission has permitted both sound recorders and television cameras to be used when national wage case decisions are handed down. In other important cases of the Commission, apart from national wage cases, filming by the news media of the Judges assembling prior to the commencement of proceedings is permitted. ⁴³ Whether this occurs depends on the decision of the presiding judge but filming is not permitted of actual proceedings of the Commission.

4.30 One further relevant illustration can be mentioned although not involving television coverage of court proceedings. In December 1981, Mr. Justice Toohey, as the Aboriginal Land Commissioner, allowed filming of part of the proceedings of the Kaytej-Warlpiri Warlmanpa Land Claim. This was for use in the film “The Shifting Dreaming” which was shown on commercial television in 1982. The Aboriginal Land Commissioner does not sit as a court in the strict sense, but it is an interesting precedent.

4.31 We have been advised by Mr. Justice Toohey that filming of the proceedings was allowed on the basis that it would be of educational value to members of the public to have a greater understanding of Aboriginal land rights and land claims. ⁴⁴ All parties to the proceedings gave their consent to the filming which was allowed on two conditions. The first was that no filming would be permitted of any witness who objected and secondly, it was agreed that there would be no filming when evidence confidential to Aboriginal society (for example, evidence relating to ceremonies) was being presented. Virtually all of the filming was undertaken when the Land Commissioner was hearing evidence out-of-doors.

Filming of Court Proceedings for Use in a Commercial Film

4.32 We are aware of one occasion where court proceedings have been filmed for use in a commercial film. Part of the proceedings of the New South Wales Land and Environment Court in the case of Prineas v. Forestry Commission of New South Wales ⁴⁵ were allowed to be filmed by the presiding Judge, Mr. Justice Cripps, for later incorporation into a film, “A Voice for the Wilderness”. The case concerned the logging of rainforest areas in the Forbes Valley section of Mount Boss State Forest, a matter of relevance to the film which was also concerned with the logging of rainforests. Only a few minutes of filming was undertaken and there was no sound recording. Artificial lighting was used. The presiding judge obtained an assurance from the producers of the film that he would be shown the segment to be incorporated into the film and that he could delete any part that, in his opinion, impaired the dignity of the court. The judge did not require the deletion of any portion of the film.

Filming of Court Proceedings Via Closed Circuit Television

4.33 For the duration of the trial in the Northern Territory Supreme Court of The Queen v. Chamberlain ⁴⁶ before Mr Justice Muirhead, the proceedings (including sound) in the courtroom were transmitted via closed circuit television to an adjacent, but separate, building where representatives of the news media were present. This was done because it was thought that the presence of large numbers of reporters in the actual courtroom would disrupt the proceedings, which had attracted a large amount of public and media interest. It was also considered to be in the interest of reporters since they had direct access to telephones in the “media room”. Although the media room was not in the same building as the court, it was deemed to be a “precinct of the court” and a court attendant was always present. Mr. Justice Muirhead granted permission for the use of closed circuit television with the consent of counsel for both parties. One camera was used throughout the proceedings, located at a back corner of the courtroom. It was equipped with a wide angle lens. No artificial lighting was used.

4.34 The High Court of Australia located in Canberra makes use of a closed circuit television system on a permanent basis. There are three courtrooms in the High Court Building. There are eight cameras in each of the two main courtrooms which are linked to eight television receiving sets in the transcription services area. The main purpose of the closed circuit television system is to identify speakers for the purpose of preparing the official transcript. ⁴⁷ The cameras are located behind the courtroom panelling and provision for them was made in the original architectural design. Three cameras are located in the wall behind the justices and five cameras are above the press gallery.

4.35 Although the main purpose of the system is for the benefit of the transcription service, video “split” is taken from two of the eight cameras and transmitted to a media room where representatives of the news media may watch the proceedings without being in the actual Courtroom. A sound link is also provided. There is one television receiver in the media room which provides a choice of two camera angles, a front view of counsel addressing the bench, and a front view of all justices present. Apart from the media room, other television receivers ire located on the Justices level, in the Registrar’s office, and in the barristers’ robing room. All hive the same choice of two camera angles as is provided in the media room and all are equipped with sound.

4.36 The details provided in the preceding paragraphs represent occasions when television and cinematograph cameras have been allowed into Australian courtrooms. Not all of these occasions concerned televising of court proceedings. However, one of the arguments against allowing the proceedings of courts to be televised is that cameras would interfere with the proceedings and distract the participants. Yet the experience in the High Court shows that cameras can be located so as not to interfere with the proceedings, and the use of closed circuit television in the case referred to in the Northern Territory Supreme Court is an instance where the use of a camera lessened potential interference by locating representatives of the news media outside the courtroom, while at the same time allowing them to view and hear the proceedings. Of course, the question of disruption of courtroom proceedings is not the only argument that can be made against televising court proceedings, and we now examine these further arguments.

ARGUMENTS FOR AND AGAINST THE TELEVISING OF PROCEEDINGS OF COURTS AND COMMISSIONS

4.37 As we have seen, much of the debate concerning the televising of court proceedings his occurred in the United States where a majority of the States have involved some form of television coverage of court proceedings either on a permanent or in experimental basis. It is therefore useful to examine the arguments that have arisen in the United States in connection with this subject. Generally speaking, these arguments have centred around the educational value of allowing television coverage of court proceedings, the physical distraction that maybe caused by television equipment in courtrooms, the psychological effect on participants, and finally, whether television coverage of court proceedings infringes a participant s right to privacy. Although these arguments have arisen in the context of allowing the proceedings of courts to be televised, they can equally be applied to the televising of the proceedings of commissions.

Educational Value

4.38 We referred in the preceding section of this chapter to a “4 Corners” program concerned with the work of Courts of Petty Sessions. The editor of the Australian Law Journal has commented on this program:

“Few people, not familiar with the proceedings in the Central Court of Petty Sessions in Sydney, had any idea of the extent to which stipendiary magistrates and police are overworked in disposing of long lists of cases, and of the inherent delays which are endemic in the existing system. The televised view of that court showed that... one of the main problems in the administration of justice in Petty Sessions proceedings is that of representation. Many defendants, appearing there for the first time, are completely at a loss to know how to meet the charges laid against them and naturally possess only the haziest conception of the nature of the relevant court procedure in relation to their case.” ⁴⁸

“Generally, Americans do not understand how their legal system works. This ignorance exists despite the ethical duty of lawyers to educate the public about the legal system ... Televising court proceedings would be particularly effective in helping to fill the educational void.” ⁴⁹

“The televising of trials can be both an effective teaching tool and socialisation device. It could disseminate not only an academic understanding of judicial processes and their relationship to individuals, but also could raise in the consciousness of viewers ideals of individual rights and responsibilities in relation to the system. This would make the viewers more aware of their own rights and responsibilities in our society, which our judicial system is entrusted with enforcing.” ⁵⁰

“The medium has both an inherent limitation in the extent of the cover that can be telecast, as well as an inherent tendency for the form and appearance to overshadow the substance. This latter prospect imports a further tendency to induce those participating in the proceeding to give undue attention to form and appearance of their part in the litigious process. Being at the expense Of Substance, this could distort the process of justice itself.” ⁵²

“A courtroom is not a stage: and witnesses and lawyers, and judges and juries and parties, are not players. A trial is not a drama, and it is not held for public delectation, or even public information It is held for the solemn purpose of endeavoring to ascertain the trutk- and very careful safeguards have been devised out of the experience of many years to facilitate that process. it can hardly be denied that if this process is broadcast or televised, it will be distorted. Some witnesses will be frightened some will want to show off, or will show off, despite themselves. Some lawyers will ‘ham it up’. Some judges will be unable to forget that a million eyes are upon them. How can we say that our primary concern is the equal administration of justice if we allow this to be done?” ⁵³

“Popular entertainment and news via mass media represent the conventional cultural pressures of the social order .. a trial must proceed as independently as possible from conventional moral pressures and the popular clamor of the moment. Televising trials may erode independence of judges to do justice in each case, it would do nothing to ensure greater fairness that existing media scrutiny could not do.” ⁵⁴

4.42 In Estes v. Texas, ⁵⁵ a majority of judges of the United States Supreme Court held that the physical distraction and disruption of the proceedings that resulted from the televised coverage of the accused’s trial “inherently prevented a sober search for the truth.” ⁵⁶ However, this objection does not today have the same force it had when Estes was decided in 1965 as television recording can now be unobtrusive and the need for artificial lighting eliminated. The guidelines that have been formulated by the Florida Supreme Court for televising court proceedings in that State provide an example of how the problem of electronic equipment in the courtroom can be dealt with so as not to impair the efficient conduct of proceedings. ⁵⁷ In the words of one commentator:

“Electronic equipment is no longer bulky, noisy, or obtrusive. The development of the light-sensitive videotape camera (ENG or minicam) has given cameras a lower profile, and videotape cameras are available that are lightweight and mobile and require no bright lights. Fast-film cameras allow virtually noiseless film cameras to work at very low light levels. Sound-film cameras and minicams are almost soundless except for a quiet “click” when they begin and end shooting. Microphones, which in the past have been associated with troublesome and treacherous underfoot wires, are even less noticeable than cameras.” ⁵⁸

4.43 Perhaps the most significant objection to the televising of court proceedings is the alleged adverse effect that it has on participants. This objection is said to have several aspects. First, some witnesses may refuse to testify if they know that the trial is to be televised although this could be controlled by prohibiting coverage of witnesses who do object. We have already observed that many of the States in the United States that allow television coverage of court proceedings have this provision in their guidelines. ⁵⁹

4.44 It has also been suggested that in the presence of television cameras, some witnesses may become extremely nervous and a jury may find it difficult to decide whether the resultant lack of composure by the witness is attributable to the television cameras or cross examination by counsel. ⁶⁰ It is to be noted however, that the studies concerning the effect of television coverage on the testimony of witnesses are not conclusive and studies undertaken in Florida and California found that there was no evidence for concluding that witnesses were more nervous when filmed, and no difference was found in the responsiveness or decisiveness of witnesses. ⁶¹

4.45 A second aspect of the psychological effect of television coverage on participants to judicial proceedings is the effect on jurors. It is said that television coverage will reduce the ability and willingness of jurors to make impartial findings. ⁶² Neighbours, friends and relatives who view parts of a trial on television will exert pressure on jurors. Moreover, it is alleged that prejudice may arise if jurors are permitted to return home at the end of the day when the trial is still continuing and watch selected excerpts on television. One solution that has been suggested in order to overcome this problem is that the film or videotape of the proceedings should not be broadcast until the trial is completed. ⁶³ This procedure would obviously reduce the news worthiness of any television coverage, however, the competing interests of allowing media access to trials and at the same time obtaining a fair and unprejudiced trial for the defendant, must be balanced.

The Right to Privacy

4.46 Ithasbeenarguedbyopponentsoftelevisioncoverageofjudicialproceedingsthatsuch coverage violates the privacy rights of the participants by exposing them to “unwanted notoriety or publicity.” ⁶⁴ In response, it is said that a possible constitutional challenge to television coverage based on a right to privacy would be weak as recent decisions of the United States Supreme Court have confined the scope of a right to privacy to areas such as marriage and procreation. ⁶⁵

4.47 Furthermore, it has been suggested that participation in judicial proceedings that are open to the public undermines any right to privacy that may exist. ⁶⁶ However, any objection that an individual participant in a judicial proceeding may have to being televised should be considered by the presiding judge, and it has therefore been suggested that:

“... an effective plan for implementing cameras in the courtroom should allow for the privacy interests of trial participants without permitting such interests to control whether camera coverage takes place.” ⁶⁷

4.48 A major policy question which the Commission will be considering in future work on this reference and on which we invite submissions is the following: what benefits will result from television coverage of the proceedings of courts and commissions and do these benefits outweigh any potential risks? The judges we have spoken to who have allowed cameras into their courtrooms have all stated that they believed it was in the public interest to allow television coverage of the particular proceedings in question. In the preceding section we have identified some of the advantages of television coverage of the proceedings of courts and commissions and also some of the disadvantages. We would welcome further discussion of this question.

4.49 If limited television coverage of the proceedings of courts and commissions were to be permitted on a formal basis, there would obviously be a need for guidelines to regulate such coverage. Much assistance could be obtained in this respect from guidelines adopted in various States of the United States. ⁶⁸ Further questions which need resolution in the course of future work on this reference include the following:

• Should television coverage be permitted while proceedings are continuing or should there be a prohibition on any broadcast until proceedings have concluded. One of our consultants suggested that while there is scope for considerable public benefit from the broadcast over radio and television of court proceedings on selected occasions, many difficulties associated with such media coverage would be eliminated if the broadcast was delayed until after the case had concluded. ⁶⁹
• What restrictions should be imposed on any television coverage? For example, should there be a prohibition in respect of the filming of jurors? It is to be noted that there presently exists such a prohibition pursuant to section 68 of the jury Act, 1977, which provides:
  
  “A person shall not, except in accordance with this Act, Publish or print any material or broadcast or televise any matter of such a nature that a person may thereby be informed, whether by implication or otherwise, of the identity or address of any juror.”

   

• Should coverage only be permitted if the consent of all parties to the proceeding has been obtained? Should a distinction be drawn between civil and criminal proceedings as has been done in several American States? In these States, while consent is not necessary for television coverage of civil proceedings, in criminal proceedings, the consent of the accused must be obtained before any television coverage is permitted
• What provision, if any, should be made for objection by the participants in a proceeding to television coverage? For example, television coverage of court proceedings in Iowa is not dependent on obtaining the consent of the parties. However, the Rules of Procedure of the Iowa Code of Judicial Conduct state that a party has the opportunity to file a written objection and this is heard and determined by the presiding judge. Witnesses are also advised of their right to object to television coverage and again, any objections are heard and determined by the presiding judge.
• What notification procedures should be established? The Iowa Rules of Procedure state that the presiding judge and legal representatives of all parties must be informed of an application by the news media to televise a proceeding at least 14 days before the proceeding is scheduled to begin. This may be extended or reduced by court order. In Maryland, the Rules of Court Administration provide for all requests for television coverage to be made at least five days before the proceeding is scheduled to begin while the Wisconsin Court Rules and Procedure state that “if possible, the trial judge shall be given notice, at least 3 days in advance”, of a request to televise proceedings. In New Mexico, 24 hours notice is required (although the judge has a discretion to shorten this time), while Canon 3A(7) of the Massachusetts Code of judicial Conduct states that a judge should require “reasonable advance notice from the news media” of a request to televise a particular court proceeding.
• Should any application for televising proceedings of a court have to be considered solely by the presiding judge or magistrate or should the approval of the chief judge of each court or the Supreme Court, for example, have to be obtained? On the occasions when, to our knowledge, television coverage has been allowed of court proceedings in Australia, it has been solely a matter for the presiding judge or magistrate to determine. In Tennessee, Canon 3(7) (A) of the Code of judicial Conduct provides that prior to any television coverage of court proceedings in that State, the Supreme Court of Tennessee shall have authorised a plan for the courtroom in which the television broadcast will occur. The plan must disclose the places where cameras, lights, wires and transmitting devices may be located and other details, including the area of movement of media personnel.
• What standards in respect of television equipment should be imposed? Some American States (for example, California and Maryland) specifically list certain brands of film cameras and video tape cameras in their procedural rules. The rules also provide that no camera or audio equipment shall produce greater sound or light than the equipment listed- Many States limit the number of television cameras that are allowed in a courtroom. The Tennessee Rules, for example, provide that only one television camera is permitted in a courtroom while a hearing is in session and that the media are responsible for “pooling” arrangements.

4.51 It may be that if there is a perceived public benefit in allowing the electronic media to have direct access to courtrooms, the benefits and risks could be evaluated through a controlled experimental program conducted over a specified period of time. Professor R.G. Nettheim, one of our consultants, suggested this as a useful way of proceeding. ⁷⁰ Professor Nettheim further Suggested that the experimental program could be controlled and administered by a committee which comprises representatives of the Attorney General, Judges, Magistrates, the Law Society, the Bar Association, and media interests. The committee would establish guidelines for television coverage of selected proceedings and would also consider applications from media organisations to cover particular proceedings. The committee would, in the first instance, formulate guidelines which would address the policy questions raised earlier in this chapter. ⁷¹ The committee would closely monitor the experimental program for its duration. This would involve not only an examination of whether television coverage can be conducted without disruption of the proceedings but also an analysis of the actual broadcast of court proceedings to determine whether the broadcast (and any prior editing of the film) is undertaken in a manner that does not dramatise the proceedings but also presents the proceedings in an accurate and impartial way.

4.52 Recent advances in technology may mean that there is no longer a risk of physical disruption of proceedings if the electronic media are given direct access to courtrooms, provided proper guidelines are established. However, it has been observed earlier in this chapter that some commentators have serious reservations with respect to the psychological effect of television coverage on participants in judicial proceedings, including jurors, witnesses and counsel. This aspect would have to be carefully examined by the committee, perhaps with the assistance of social scientists, if any experimental program is to be established. In any event, the establishment of an experimental program which would allow a careful and considered analysis of the benefits and risks of television coverage of court proceedings may be preferable to allowing ad- hoc television coverage of court proceedings as occurs at present. in the words of one commentator

“When courts emerged as society’s instruments for deciding controversies, electronic recording devices, and even cameras, were unheard of, today, they are interwoven into the fabric of society. It must be determined if they are to operate in reporting the judicial scene and, if so, there must be a definitive charting of course.” ⁷²

1. Keith Windschuttle, The Media (1984), p.59.

2. The Joint Committee has been directed by resolution of both Houses of Parliament to inquire into and report on inter alia, “the televising of the proceedings of the Houses of Parliament and their committees in the present and the new Parliament House.” There have also been calls for television coverage of the proceedings of the Parliament of New South Wales: The Sydney Morning Herald April 21,1984. At present, the only television coverage permitted of the proceedings of the Commonwealth Parliament are the Governor-General’s Speech and procedures associated with the opening of a new session of Parliament. The only extensive telecast of proccedings of the commonwealth Parliament occurred during the joint sitting of both Houses in 1974: J.A. Pettifer (ed), House of Representatives Practice (1981), p.686.

3. Licensed television stations must comply with program standards determined by the Australian Broadcasting Tribunal in pursuance of the Broadcasting and Television Act 1942 (Cth). See also section 68 of the Jury Act, 1977; discussed in para.4.49.

4. R v. Gray [1900] QB 36, at p.40.

5. The Queen v. The Australian Broadcasting Corporation, 2 November 1983, Supreme Court of Tasmania, Neasey J.

6. See, for example, D.R. Pemt)er, Mass Medici Law (1977), Chapter 7.

7. National Center for State Courts, Television Coverage in the State Courts (1983). See also M.K. Platte, “TV in the Courtroom: Right of Access,”’ (1981) 3 Communications and the Law 11, at p.12; and D. Graves, “Cameras in the Courts: The Situation Today” (1979) 63 Judicature 24.

8. R. Kielbowicz, “The Story Behind the Adoption of the Ban on Courtroom Cameras” (1979) 61 Judicature 14, at p.16.

9. (1958) 310 P. 2d 734.

10. Id., at p.738: quoted in L H. Abugov, “Televising Court Trials in Canada: We Stand on Guard for a Legal Apocalypse” (I 979) 5 Dalhousie Law Journal 694, at p.703.

11. (1965) 381 U.S. 532.

12. Id., at p.535.

13. Platte, note 7 above, pp.15-16.

14. Although this rule originally only applied to still cameras and radio broadcasts from federal courts, in 1962 a resolution of the Federal Judicial Conference expanded Rule 53 to ban television cameras from all federal courts and from the Courtroom Surroundings: see A.F. Camp, “Chandler v. Florida: Cameras, Courts and the Constitution” (1981) 9 Pepperdine Law Review 165, at p.169. In early 1983, a coalition of 28 news media and educational groups petitioned the judicial Conference to allow cameras in federal Courts: “Cameras in Court: Media Appeal for Easing Rule” (1983) 69 American Bar Association Journal 576.

15. See J.D. Fergason, “Chandler v. Florida: A New Perspective on Cameras in the Courtroom” (1981) 33 Baylor Law Review 679, at p.680, fn.12.

16. (1983) 695 F.2d 121-8.

17. Id., at p.1280.

18. The details of this experiment are outlined in the United States Supreme Court decision of Chandler v. Florida (1981) 499 U.S. 560, per Burger C.J., at pp.564-566. See also R. Kelso and S.M. Pawluc, “Focus on Cameras in the Courtroom: The Florida Experience, The California Experiment, and the Pending Decision in Chandler v. Florida” (1980) 12 Pacific Law Journal 1, at p.9-18.

19. In re: Petition of Post-Newsweek Stations, Florida, Inc., for Change in Code of Judicial Conduct, Supreme Court of Florida, 12 April 1979, p.27.

20. Id., Appendix 3.

21. The list of States which have permitted television coverage on a permanent basis is complied from the National Center for State Courts, Television Coverage in the State Courts (1983), and from C.A. Carter, Media in the Courts(1981), pp.52-86. See also L.J. Tornquist and K.L Grifall, “Television in the Courtroom: Devil or Saint”’ (1981) 17 Willamette Law Review 345, at pp.346-347.

22. See paras.4.1 1-4.12.

23. Maryland Rules of Procedure, Rule 1209, “Photographing, Recording, Broadcasting or Televising in Courthouses”.

24. Massachusetts Code of judicial Conduct, Rule 3:09, Canon 3A(7). See J. Connolly and D.B. Pierce-Gonzalez, “Cameras in the Courtrooms of Massachusetts” (1981) 66 Massachusetts Law Review 187.

25. Judge L.H. Cooke, “Television Experiment of the New York Court of Appeals” (1980) 35 Record of the Association of the Bar of the City of New York 5, at p.7.

26. See LV. Starcher, “Cameras in the Courts - A Revival in West Virginia and the Nation” (1982) 84 West Virginia Law Review 267, at pp.288-298.

27. National Center for State Courts, Television Coverage in the State Courts (1983). These states are California, Connecticut, Delaware, Hawaii, Maine, Nebraska, North Carolina, Pennsylvania, Rhode Island and Wyoming.

28. (1965) 381 U.S. 532.

29. Id., at p. 5 4 9.

30. Id., at p.595.

31. Id., at p.540.

32. Chandler v. Florida (1981) 499 U.S. 560, at p.562.

33. Paras.4.11-4.12.

34. Note 28 above.

35. Note 32 above, at pp.573-574. Both Stewart and White J.J., would have overruled Estes, holding that the decision established a per se constitutional rule against televising any criminal trial if the defendant objects which in their view, was incorrect: Id., at pp.583 and 587.

36. Professor R.G. Nettheim, “Cameras in the Courtroom” (1981) 55 Australian Law Journal 855, at p.860. It has been suggested that courts should develop a “qualitative difference test” as a basis upon which to decide whether allowing television coverage of a trial results is a denial of due process.

“The presiding judge may exclude electronic media coverage of a particular participant only upon a finding that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from the effect on members of the public in general and Such effect will be qualitatively, different from coverage by other types of media.”

37. Personal communication with Mr. Barritt, S.M.

38. Berry v. G.J. Coles & Company Limited No’s.8140/81-8145/81 (unreported).

39. Letter from Mr P.R. Cranswick, Q.C., 1 August 1983.

40. Commonwealth Police v. Anagnostopoulos (committal proceedings before Mr. Brown, S.M., at Central Court of Petty Sessions, Sydney, that commenced on 28 March 1979).

41. Personal communication with Mr. Brown S.M.

42. Personal communication with Mr. C. Sweeney, Australian Broadcasting Corporation.

43. One recent example was the decision of the commission in the wool-shearing “wide-comb” dispute(in the matter of the Pastoral Industry Award, 1965, 23 March 1983).

44. Personal communication with The Hon. Mr. Justice J.L Toohey.

45. 12 November 1982, Land and Environment Court, Cripps J.

46. 29 October 1982, Northern Territory Supreme Court, Muirhead J.

47. The third court is a jury court or chamber and the transcript is prepared internally to the courtroom.

48. “Proceedings in Courts of Petty, Sessions Televised” (1981) 55 Australian Law Journal 511.

49. J.E. Baker, “Lights, Cameras, Action: This Court is now in Session” (1979) 14 Gonzaga Law Review 623, at p.641.

50. W. Stone and S. G. Edlin, “T.V. or not T.V. - Televised and Photographic Coverage of Trials” (1978) 29 Mercer Law Review 1119, at p.1132. During the Course of the Supreme Court of Florida’s review, of the experimental program in that State, the Court stated:

“Electronic media coverage of all other branches and subdivisions of Florida government exists and apparently, has served not only, to inform the public about the operation of their government but has made the representatives of government act more responsible,. At the advent of gavel-to-gavel television coverage of the Florida Legislature, members of that body, expressed many of the same fears held by the respondents before us today. That experience, however, has demonstrated that the legislative process has been enhanced rather than degraded ... The court system is no less an institution of democratic government in our society. Because of the courts’ dispute resolution and decision-making role, its judgments and decrees have an equally significant effect on the day-to-day lives of the citizenry, as the other branches of government. It is essential that the populace have confidence in the process, for public acceptance of judicial judgments and decisions is manifestly necessary to their observance ... In reaching our conclusion [to permit television coverage of court proceedings on a permanent basis] we are not unmindful of the perceived risks articulated by, the opponents of change. However, there are risks in any system of free and open government. A democratic system of government is not the safest form of government it is just the best man has devised to date, and it works best when its citizens are informed about its workings.”

51. M. Beisman, “In the Wake of Chandler v.. Florida: A Comprehensive Approach to the Implementation of Cameras in the Courtroom” (1981) 33 Federal Communications Law Journal 117, at p.134. A related point which was made in the preceding chapter, is that it would be difficult to televise an extract of part of the proceedings of a court or commission that would bear a proper balance, given the limited time that is usually available for each item in a news broadcast. it is to be noted however, that program standard 27, determined by the Australian Broadcasting Tribunal pursuant to the Broadcasting and Television Act 1942 (Cth.), requires licensed television stations to observe the following principles:

“27(a) News should be presented accurately and impartially.

(b) Commentary and analysis should be clearly distinguished from news.

(c) ....

(d) ....

(e) Actual or recorded descriptions of events. or interviews, require particular care to avoid sensationalism or other undesirable forms of presentation. Fairness should be ensured in the pictorial representaion of news.”

52. Sir Laurence Street, Chief Justice of New South Wales, Televising Court Proceedings, Memorandum dated 18 March 1982.

53. E.N. Griswold, “The Standards of the Legal Profession: Canon 35 Should Not Be Surrendered” (1962) 48 American Bar Association Journal 615, at p.616. See also J.G. Day, “The Case Against Cameras in the Courtroom” (1981) 20 Judges’ Journal 18.

54. G. Gerbner, “Trial by Television: Are We At the Point Of No Return” (1980) 63 Judicature 416, at pp.417-418. For a response to Gerbner, see N. Davis, “Television in our Courts: the Proven Advantages and the Unproven Dangers” (1980) 64 Judicature 85.

55. (1965) 381 U.S. 532.

56. Id., at p.551.

57. Paras. 4.11-4.12. See also the guidelines for Massachusetts, Iowa and Maryland reprinted in the Appendix.

58. C.A. Carter, Media in the Courts (1981), p.18.

59, Para. 4.13.

60. H.P. Fahringer, Address Given at the Conference, “Television in the Courtroom - Limited Benefits, Vital Risks” (1981) 3 Communications and the Law 35, at p.41.

61. R. Kelso and S.M. Pawluc, “Focus on Cameras in the Courtroom: The Florida Experience, The Californian Experiment, and the Pending Decision in Chandler v. Florida” (1980) 12 Pacific Law Journal 1, at pp.34-35.

62. T.H. Tongue and R.W. Lintott, “The Case Against Television in the Courtroom” (1980) 16 Willamette Law Review 777, at pp.788-790. For an opposing view, see Barber, “The Problem of Prejudice: A New Approach to Assessing the Impact of Courtroom Cameras” (1983) 66 Judicature 248. The author, after a detailed examination of the present Sources of prejudice in jury trials, states that:

“It does not seem unreasonable to suggest that news camera coverage has the potential to make trials more rather than less fair, with the added public scrutiny, that accompanies the eye of the camera, some of the blatant prejudices ... might be diffused, if not eliminated.” (p.255)

64. Note 58 above, p.21. See also Tongue and Lintott note 62 above, pp.792-794.

65. Beisman, note 51 above, p.125.

66. LH. Abugov, “Television Court Trials in Canada: We Stand on Guard for a Legal Apocalypse” (1979) 5 Dalhousie Law Journal 694, at p.698,

67. Beisman. note 51 above, p.126.

68. Three examples of these guidelines are reprinted in the Appendix.

69. Letter from Mr. T. Molomby, Australian Broadcasting Corporation, 19 October 1983.

70. Letter from Professor R.G. Nettheim Professor of Law, University of New South Wales, 4 June 1984. Professor Nettheim stated that the experimental program might apply not only to television coverage of court proceedings but also to the broadcast of court proceedings on public radio.

71. Para. 4.49.

72. Note 25 above. p.10.