What's it about?

As far back as 1983, Justice Michael Kirby (now of the High Court), in typically prescient fashion, noted that "…people will grow impatient at this adherence to the old technology of information. They will see no logic in the insistence on sketches of little artistic merit of judges and witnesses. Under proper conditions, I have no doubt that television and radio will ultimately enter the courtrooms of Australia…"

So what's happened along this track since that speech 16 years ago.

Nowhere is this moreso than in the United States, where the Bobbitts's, Kennedy's, Menendez brothers, and most famously O.J. Simpson, have become household names everywhere from Australia to Zimbabwe.

There is a thematic link between these cases: they represent trials of people accused of serious and often quite notorious crimes, competing with supermarket tabloids to elevate to the cult of celebrity the characters of some very unsavoury lawbreakers.

Lest you believe this notoriety would be confined to the U.S. and its celebrity culture, take a moment to consider whether the recent trial of Greg Domaszewicz, charged with the murder of Jaidyn Leskie, would not have rated through the roof. Of course it would!

The Australian experience

In May 1995 the Victorian Supreme Court allowed the television broadcast of the sentencing of convicted child murderer Nathan John Avent by Justice Teague. It is interesting that on the appeal of the decision, Avent's lawyers suggested that Justice Teague had imposed an unnecessarily harsh sentence because of the presence of the cameras, in other words that this inadvertently promoted a bias against Avent (the Court rejected this argument). However, the Court conceded that it might one day be perceived as an influence on the outcome of judicial proceedings.

This raises an interesting issue - since the perception of fairness is critical in the public's confidence in the administration of justice, could it be said that the broadcast of judicial proceedings may lead people to question the integrity of the court? This would probably be more of a concern if the cameras were permitted to broadcast cases on an irregular basis, where the novelty of the medium is more likely to (or perceived to) lead the participants astray. Will we see judges and lawyers paying more attention to their appearance? Choosing their words a little more carefully? Or adjusting their posture to ensure the camera catches their best profile? Many commentators have cited this consideration to bolster their argument that the broadcast of cases should be available in most cases, to ensure that it loses its curiosity value.

What's in it for us?

But of course, there are significant issues of principle at stake here. If a camera is intrusive, then so is the presence of the citizens entitled to attend courts without restriction. After all, what's the difference?

An open system of courts is enshrined as a fundamental bedrock of democracy, and outside of reporting that might prejudice the outcome of a trial, we also allow the media absolute access to courts in the full knowledge that they will recount the process to anyone with the money to buy a newspaper or television.

Let's be careful

Okay, but let's be careful in the way we go about this. We're not going to see the action suspended for a commercial break (as happens in the football), and like bird watchers, we'll want the cameras to be as unobtrusive as possible. The judges are going to have to take a strong hand, as well, otherwise we're likely to see witnesses playing to the cameras like B-grade actors (yes, it will be on with the glam clothes and grease paint).

For example, cameras have on occasion been allowed to record Federal Court cases, so long as the proceedings are not disturbed; no artificial lighting is used; the cameras remain in fixed positions; and that the Court reserves the right to refuse the entry of the cameras at any time. Nevertheless, concerns have been raised that the media, at times, seeks to sensationalise court cases and any extensive intrusion by television entry would open the floodgates to a tabloid mentality.

In 1997 a number of excerpts from Federal Court proceedings were also broadcast by radio. In one instance an application to film proceedings was refused because the expert witnesses were unwilling to have their testimony broadcast, and although this testimony would be available to those attending the hearing or reading the transcript, this seems to be a reasonable precaution. Nevertheless, should the televising of court cases become common place, the consent of witnesses would become an important issue.

Hopefully this venture into the information age will help to educate the public about the realities of the courtroom experience and the part the law plays in all our lives. Also, it is hard to argue against any innovation that allows greater public scrutiny of the court system, which should promote public confidence in the administration of justice.

Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information.

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