INTRODUCTION
5.1 Our terms of reference refer to the “recording of court proceedings, the proceedings of Royal Commissions and the proceedings of Commissions of Inquiry under the Special Commissions of Inquiry Act 1983”. As we explained in Chapter 1, sketches and photographs of the proceedings of courts and commissions constitute a “record” of part of those proceedings and therefore come within the terms of reference. We did not consider this subject in our initial report on this reference, 1 because the original reference to the Commission was concerned with the specific issue of the use of sound recorders by representatives of the news media. However, it is now appropriate to consider the desirability or otherwise of allowing sketches and photographs of the proceedings of courts and commissions in the context of our discussion of the broader issues which arise out of the terms of reference.
THE PRESENT LAW
5.2 In the absence of statutory provision in New South Wales, the regulation of sketches and photographs falls within the inherent power of a court or commission to control its own proceedings. 2 This view, although not the subject of specific judicial decision is reflected in the practice of courts and commissions. For example, in a recent New South Wales Royal Commission presided over by the Chief Justice of New South Wales, a memorandum issued by him to the news media stated that the making of sketches would be permitted during proceedings and the taking of photographs of the courtroom and the precincts was allowed, provided that no persons were photographed. 3
5.3 In England, there is specific legislation which prohibits the taking of photographs and the making of sketches in court. Section 41(1) of the Criminal justice Act 1925 (Eng.) provides:
It can be seen that the section creates two offences: the taking of a photograph and the making of a sketch or portrait in court (if the latter is done with a view to publication) and secondly, the publication of any such photograph, portrait or sketch. A maximum fine of 50 pounds maybe imposed for each offence. 4 Section 41(2)(c) extends the prohibition to any photograph, portrait or sketch taken or made “in the building or in the precincts of the building in which the court is held”.
5.4 It is to be noted that although there is an absolute prohibition on taking photographs in section 41(1), sketches and portraits are only prohibited if these are made of a judge, juror, witness or party to any proceedings and are made with a view to publication. Consequently, it would seem that sketching a member of the public in court is not an offence, even if it is done “with a view to publication”. A sketch of a judge or witness does not constitute an offence if the sketch is not done “with a view to publication”. Indeed, given that section 41(1)(b) is worded so as to be restricted to the publication of material obtained in contravention of section 41(1)(a), the subsequent publication of a sketch of a judge or witness would not be an offence pursuant to section 41(1)(a) if there “,as no intention to publish at the time the sketch was made. 5 Moreover, it is unclear whether section 41(1)(b) prohibits any photograph taken within the Court or Court precincts, or applies only to photographs of a judge, juror, witness or party to any proceedings. It has been suggested that the preferable view is that the section only operates to prohibit photographs of the specific persons named in the section. 6 Therefore, on this interpretation an offence would not be committed by photographing a member of the public present in court although Miller states that such an act may still amount to contempt “if it is seriously disruptive of court proceedings”. 7
5.5 Queensland has enacted a statutory provision to govern the taking of photographs in courts presided over by justices. Section 71B of the Justices Act 1886 (Qld) 8 provides:
“(1) A person who, during the conduct of a proceeding involving the exercise of any jurisdiction of justices or immediately before the commencement of that proceeding or immediately after the conclusion thereof or during an adjournment thereof, by means of a camera or similar apparatus or reproducing equipment, takes a photograph or produces a picture or other optical effect (in any case whether a movie or a still) -
(a) in or of the room or place in which the proceedings in being, is about to be or has been conducted or of a person therein;
(b) in or of the room or place for the time being set apart for a purpose connected with that proceeding or of a person therein;
(c) in or of an entrance or passageway leading to or from any room or place referred to in provision (a) or (b) or of a person therein,
commits an offence against this Act unless he takes the photograph or produces the picture or other optical effect with and in accordance with the consent first had and obtained of the justices who are to conduct, have conducted or, as the case may be. are conducting that proceeding.
(2) A person who publishes a photograph taken or picture or other optical effect produced in such circumstances as to constitute an offence defined in subsection (1) commits an offence against this Act.”
There is a penalty of $400 or imprisonment for one month for each offence. The section applies to the televising of court proceedings and differs substantially from the English legislation in that there is provision to obtain leave of the court to take a photograph of the court proceedings.
5.6 During the Parliamentary Debates, section 71B was criticised by the parliamentary opposition on the basis that although “there should be some prohibition against taking photographs, or producing pictures or movie film or other tvpe of reproduction without the conscent of the justices”, the provision was too restrictive. 9 In response, the Deputy Premier. the Honourable W.E. Knox, stated:
“The amendment is not to prohibit photographs being taken. In many cases permission is granted. If a private person or a person from the media wanted to photograph Courthouses, Courtrooms and so on as has happened in many cases, permission would be granted ... There should be no problem with any person who legitimately wants to take a photograph without interfering with the course of justice.” 10
5.7 In Victoria regulations made under Section 218 of the Land Act 1958 (Vic.) provide that it is an offence to use a camera in any part of the Supreme Court Building, unless the consent of a judge of the Supreme Court has been obtained. 11 On 15 February 1984, the Victorian Supreme Court Building was one hundred years old. For the centenary, twenty-one judges assembled on the bench of the Twelfth Court of the Supreme Court for a special session The occasion was described by the Victorian Law Institute Journal as “the first at which photographs of court proceedings were permitted”. 12
5.8 In the United States, guidelines which regulate television coverage of courtroom proceedings in each State generally also apply to still photography of these proceedings. 13 We stated earlier in this chapter that as there is no statutory prohibition in New South Wales on the making of sketches and the taking of photographs of courts; and commissions, the regulation of these methods of “recording” the proceedings of Courts and commissions must proceed from the inherent power of each court or commission to control its own proceedings. Although we are not aware of any judicial decision in New South Wales on the extent of this power as it relates to sketches and photographs, the scope of the power of a United States court to prevent the making of sketches and the taking of photographs has been considered in two decisions of the United States Court of Appeals. In Dorfman v. Meiszner, 14 the court held that a rule of the United States District Court for the Northern District of Illinois which prohibited “the taking of photographs in the courtroom or its environs” was invalid in part because “environs” was defined in the rule to include areas of the building where photography would not disrupt the judicial proceedings. The court stated that:
“Any prior restraint on the press must be confined to those activities which offer immediate threat to the Judicial proceedings and not to those which are merely potentially threatening.” 15
5.9 In United States v. Columbia Broadcasting System Inc, 16 the Court of Appeals considered a trial judge’s ruling that barred the making, and subsequent publication of sketches in the courtroom or its environs. The court held that although the trial Judge was legitimately concerned with preventing prejudicial publicity, the total ban on the publication of sketches was insufficiently related to the danger sought to be avoided. The court also briefly considered the power of the District Court to issue orders regulating conduct in the courtroom and stated:
“Ordinarily the trial judge has extremely broad discretion to control courtroom activity... We are unwilling, however, to condone a sweeping prohibition of in-court sketching when there has been no showing whatsoever that sketching is in any way obtrusive or disruptive.” 17
5.10 It is to be noted that in New South Wales it is contempt under the common law to publish a photograph of a person who may be required to be identified, if identity is likely to be an issue in proceedings that are pending. 18 The reason for this rule is that publication of a photograph of an accused person whose identity is likely to become an issue at the trial jeopardises the reliability of identifying witnesses and consequently will prejudice the proceedings. In the words of Lord Clyne:
“Identification may be a really substantial issue in the trial and publication of... a photograph may gravely prejudice that trial by affecting the evidence of identification at the trial by witnesses who have already seen the photograph. The whole object of all this throughout is to secure a fair and impartial trial for the arrested person.” 19
5.11 The test to be applied:
“... is to see whether as at the time when the photograph was published, there was a likelihood that the identity of the accused would come in question in some aspect of the case, so that publication of the photograph would be likely to prejudice a fair trial. If the Court is satisfied beyond reasonable doubt that there was such a likelihood... a case for intervention is made out.” 20
In a recent decision of the Tasmanian Supreme Court, 21 it was stated:
“... where a person is charged with a crime which is in the ordinary calendar of criminal offences, it is always likely, unless some special circumstances clearly indicate otherwise, that a question of identity may arise in some aspect of the case at the trial, and therefore, the general rule is that at or about the time a person is charged and thereafter, no photograph of the accused person should be published. 22
ARGUMENTS FOR AND AGAINST ALLOWING SKETCHES AND PHOTOGRAPHS OF PROCEEDINGS OF COURTS AND COMMISSIONS
5.12 The Criminal Law Review Division of the New South Wales Department of the Attorney General and of justice recently considered the law relating to the taking of photographs in Courts of Petty Sessions as part of a report on the justices Act, 1902. The Division recommended that “legislation controlling the taking of photographs cannot be justified at this time and should not be adopted.” 23 Two reasons were given for this recommendation: First, that it would be difficult to apply legislation along the lines of that adopted in Queensland in practical situations (although the Division did not explain why this would necessarily be so) and secondly, that no problem has been identified in this area and that the convention that there is no photography in courts is invariably adhered to. 24
5.13 It is implicit in the second reason given by the Criminal Law Review Division that the taking of photographs in court is considered to be undesirable in principle. There is no discussion of possible benefits in allowing photographs of participants in court proceedings. There are difficulties that would have to be overcome if the taking of photographs or the making of sketches were to be permitted during the proceedings of courts and commissions. One of the most important is the need to prevent any disturbance to the proceedings. Justice William Douglas has identified what he considers to be a further difficulty with allowing photographs to be taken of court proceedings:
“Picture taking in the courtroom is more than disconcerting. It does not comport with traditional notions of a fair trial. A man on trial for his life or liberty needs protection from the mob. Mobs are not interested in the administration of justice. They have base appetites to satisfy. Even still pictures may distort a trial inflame a proceeding by depicting an unimportant miniscule of the whole, or lower the judicial process in public eyes by portraying only the sensational moments.” 25
5.14 However, it may be that news reports of the proceedings of courts and commissions would be enhanced if accompanied by selected photographs and sketches of the judge, counsel or commissioner in the actual proceedings. By this we mean that the public may be better able to appreciate the manner in which the proceedings are conducted. We observed earlier in this paper that there is a clear public interest in increasing the community’s understanding of the workings of important institutions such as courts and commissions. Photographs and sketches which depict part of the proceedings of a court or commission may serve this public interest provided that the photograph or sketch does not present a distorted view other proceedings (this may occur, for example, with a sketch that is a caricature) and provided that the proceedings are in no way disturbed.
POLICY QUESTIONS
5.15 It is apparent that the publication of photographs and sketches of the kind discussed ill this chapter can be a significant feature of reporting by both the press and the broadcast media. It is, in our opinion fair to conclude that the public is, on occasions, interested to see such records. Our concern is to establish whether an issue for reform exists such as to justify the enactment of legislation regulating this activity. Consequently, we invite submissions in response to the question whether there are circumstances in which photographs, sketches and drawings of the participants in the proceedings of courts and commissions should be specifically permitted by law. Is the subject better left in its present condition which for practical purposes may be described as being entirely within the power and discretion of each court and commission or is legislation required? In addition, the following questions will need to be addressed:
- Should there be a legal right on the part of certain persons, for example, representatives of the news media, to make sketches or take photographs subject, of course, to certain conditions or guidelines being complied with by these persons?
- Should guidelines regulating sketches and photographs of courts be dealt with in rules of court and practice directions or should they be dealt with by way of statute?
- What restrictions should be imposed on permitting particular parts of the proceedings of a court or commission or particular participants, to be photographed or sketched? For example, should there be a prohibition on the photographing or sketching of jurors? Section 68 of the Jury Act, 1977, prohibits the publication or broadcast of any material that identifies a juror and this would no doubt include a sketch or photograph of a juror. Moreover, there would need to be a restriction on photographing or sketching a person accused of a criminal offence for it is clear from the decision in The Queen v. The Australian Broadcasting Corporation, 26 that from the time a person is charged with a criminal offence, contempt may be committed if the accused person is photographed or sketched.
- Should the consent of any participant who is to be photographed or sketched have to be obtained?
5.16 If there is merit in allowing photographs and sketches to be made of the proceedings of courts and commissions, it may be appropriate to institute an experimental program. The experiment might operate in conjunction with the program for allowing selected television coverage of court proccedings referred to earlier. 27 The objective would be to assess whether the public interest in allowing photographs and sketches to be made is outweighed by any potential risks. The experimental program might allow representatives of the news media to have regular access to certain courts for the purpose of taking photographs or making sketches of the proceedings. Guidelines would determine such matters as the parts of the proceeding that may be recorded for this purpose and the number of cameras allowed in a courtroom. The Commission invites submissions on the question whether this would be a desirable step and, if so, the guidelines and conditions that should govern any such experimental program.
FOOTNOTES
1. Sound Recording of Proceedings of Courts and Commissions: The Media, Authors and Parties (LRC 39, 1984).
2. We have discussed the concept of inherent jurisdiction in our report on this reference (note I above, paras 2.26-2.42) and earlier in this paper (paras. 2.2-2.5).
3. The memorandum is reprinted in Appendix 2 of the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against KE. Humphreys, July 1983, pp.110-111.
4. Criminal Justice Act 1925 (Eng.). s.41(1).
5. C..I. Miller, Contempt of Court (1976). p.61.
6. G. Borrie and N. Lowe, The Law of Contempt (1973), p.19.
7. C.J. Miller. note 5 above, p.62.
8. This provision was introduced into the Justices Act by the Justices Act and the Criminal Code Amendment Act 1977 (Qld). s.6. For a similar provision regulating the taking of photographs in Coroners Courts in Queensland, see Coroners Act 1958 (Qld), s.52A.
9. Parliamentary Debates (Hansard), Legislative Assembly (1977), vol.272, p.2637.
10. Id., p.2638.
11. Victoria Government Gazette, No.14, 22 February 1978.
12. (1984) 58 Law Institute Journal 15, at p.207.
13. See, for example, the three State guidelines reprinted in the Appendix to this paper.
14. (1970) 430 F.2d 558.
15. Id., at p.563.
16. (1974) 497 F.2d 102.
17. Id., at p.106-107.
18. A. Arlidge and D. Eady, The Law of Contempt (1982), para.4-44; C.I. Miller. note 5 above, pp. 103-105.
19. Stirling v. Associated Newspapers Ltd. (1960) SLT 5, at pp.8-9.
20. Ex parte Auld: Re Consolidated Press Limited (1936); 36 SR (NSW) 596, at pp.598-599. See also Attorney General for New South Wales v. Mirror Newspapers Ltd. (1962) NSWR 856.
21. The Queen v. The Australian Broadcasting Corporation, 2 November 1983, Supreme Court of Tasmania, Neasey J.
22. Id., Transcript of judgment, p.12.
23. Criminal Law Review Division, Proposals for Revision of the NSW Justices Act, 1902 (September, 1980). p.34.
24. Ibid.
25. W.O. Douglas, “The Public Trial and the Free Press” (1960) 46 American Bar Association Journal 840, at p.842.
26. Note 21 above. See paras.5-10-5.11.
27. Paras. 4.50-4.52.
