REPORT 39 (1984)-COMMUNITY LAW REFORM PROGRAM:SOUND RECORDING OF PROCEEDINGS OF COURTS AND COMMISSIONS:THE MEDIA, AUTHORS AND PARTIES

2. Recording the Proceedings of Courts: The Present Law and General Principles
INTRODUCTION

2.1 In this chapter we examine the law in New South Wales applicable to the recording and reporting of the proceedings of courts by representatives of the news media and other persons, including authors of books and articles and members of the public. We examine first the current practice regulating the reporting of judicial proceedings, and then the right of representatives of the news media and the public to be present in court and report and comment upon the proceedings. This right is based on the historic principle that justice is to be administered in open court. The remainder of the chapter is concerned with an analysis of the power of courts to control the means of recording court proceedings, for example, the use of sound recorders. In the absence of statutory provision control over the methods used to record the proceedings must proceed from the inherent jurisdiction or power of a court to control its own proceedings. Our conclusions are preceded by analysis of the principles underlying the exercise of this inherent power.

RECORDING OF COURT PROCEEDINGS: THE PRESENT PRACTICE

2.2 Representatives of the news media are, generally speaking, restricted to the use of handwritten notes for the purpose of recording court proceedings in New South Wales. In our Issues Paper to be published shortly we document several occasions when the proceedings of courts in New South Wales have been broadcast over public television. However, these occasions represent rare exceptions to the general practice that prevails in New South Wales, namely, that electronic recording of court proceedings, other than for official purposes associated with the preparation of transcripts, is not permitted There is no statute which prohibits or regulates the use of electronic recording equipment such as cameras and sound recorders in New South Wales courts. Later in this chapter we examine the power of a court to make rules regulating its own practice and proceedings, with specific reference to the means used to record court proceedings. We also examine the power of a court to punish persons who disobey an order of the court regulating its proceedings.

2.3 In New South Wales, the only sound recording of court proceedings presently allowed on a permanent basis is that undertaken for the purpose of making an official transcript of the proceedings. However, the use of sound recorders for making an official transcript is by no means universal in New South Wales courts, and both the Supreme Court and the Industrial Commission still rely heavily on court stenographers or reporters. The Land and Environment Court relies wholly on sound recording, while a combination of sound recording and court stenographers is found in the District Court, the Workers’ Compensation Commission and Magistrates Courts. Where sound recording is used, in no case is the tape made available to journalists. The tape is kept indefinitely by the Court Reporting Branch of the Department of the Attorney General and of Justice.¹

2.4 We have made inquiries in other States and Territories of Australia and in New Zealand in relation to the practice of reporting court proceedings in those jurisdictions. We are able to conclude that the practice in New South Wales is similar to that followed elsewhere in Australia and in New Zealand. Although we were referred to an occasion in Tasmania and one in the Northern Territory when the proceedings of a court were filmed for subsequent televising, in no jurisdiction was the use of sound recorders or other electronic recording equipment allowed other than for the purpose of the preparation of the official court transcript.² We were informed that as is the case in New South Wales, there is no statutory bar to the use of electronic recording devices but the general rule is that representatives of the news media are restricted to taking handwritten notes. Recent legislation in England regulates the use of sound recorders in courts³ and we examine its provisions in detail in Chapter 4.

2.5 Although representatives of the news media are not in practice, permitted to use sound recorders while in court, we are aware of one example of standing arrangements whereby the news media can make a sound recording of court proceedings while outside the courtroom. In the High Court of Australia in Canberra, the proceedings in two of the three courts are transmitted via closed circuit television to a “media room” where representatives of the media may view and hear the proceedings. We are informed that some representatives of the news media follow the practice of using sound recorders in the “media room” to record the proceedings, rather than take handwritten notes. This occurs particularly when a reporter is absent from the “media room”. Although such recording is not made by representatives of the news media while personally present in court the same result is obtained.

THE RIGHT OF REPRESENTATIVES OF THE NEWS MEDIA AND THE PUBLIC TO BE PRESENT IN COURT AND REPORT THE PROCEEDINGS

Open Justice

2.6 The right of the news media to be present in court and report the proceedings is based on the principle that justice is to be administered in open court. In the words of one commentator

“There is a basic principle that courts must administer justice in public. In practical terms, this means allowing the Press to attend and report the proceedings as representatives of the public.”⁴

In a recent case, Home Office v. Harman,⁵ Lord Diplock said:

“... justice in the courts of England is administered in open court to which the public and press reporters as representatives of the public have free access and can listen and communicate to others all that was said there by counsel or witnesses.”⁶

In an earlier case, Lord Diplock stated that the application of the principle of open justice has two aspects:

“... as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.”⁷

2.7 A leading case on the principle that justice must be administered in open court is Scott v. Scott.⁸ The case involved matrimonial proceedings and, on appeal the House of Lords considered the power of a judge to make an order which excludes the public from a hearing. The principle enunciated by all five judges was that subject to certain narrowly defined exceptions, the administration of justice must be conducted in open court in the words of the Earl of Halsbury, “every Court of Justice is open to every subject of the King”.⁹ The reason for allowing the public to have access to the courts was stated by Lord Atkinson:

“The hearing of a case in public may be, and often is, no doubt, painful humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trials is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect.”¹⁰

2.8 The House of Lords considered that there were exceptional cases where it was justifiable to exclude the public from the court:

“while the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions... But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done... it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield.”¹¹

2.9 The test stated by Viscount Haldane LC was that to justify an order for a hearing in camera (that is, in the absence of the public) it must be shown “that the paramount objective of securing that justice is done would really be rendered doubtful of attainment if the order were not made”.¹² However, the Earl of Halsbury expressed concern at the width of this exception to the general rule of open courts, stating that the test was of such wide application that an individual judge may apply it in circumstances that the law does not warrant.¹³

2.10 The Australian cases concerning the access of members of the public to courts have treated the decision of the House of Lords in Scott v. Scott as authoritative. Thus, in 1913, an application to the High Court by motion that an appeal in a matrimonial matter be heard in closed court was refused on the authority of Scott v. Scott. The Acting Chief justice, Sir Edmund Barton with whom the other four judges comprising the court concurred, said:

“... there is no inherent power in a Court of justice to exclude the public, in as much as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings.”¹⁴

2.11 Similarly, a decision to deny the public access to a criminal trial on the basis that unsavoury evidence was to be presented led to the quashing of the conviction by the Supreme Court of New South Wales.¹⁵ Following Scott v. Scott, the Chief justice stated that “the only consideration to which the rule as to publicity yields is the paramount duty of the Court to secure that justice should be done”.¹⁶ The fact that publicity is an essential element of the principle that justice is to be administered in open court has been emphasised by the present Chief justice of New South Wales, Sir Laurence Street:

“it is a deeply rooted principle that justice must not be administered behind closed doors - court proceedings must be exposed in their entirety to the cathartic glare of publicity. There are limited exceptions to the observance of this principle but these are well defined and sparingly allowed. Statutes are made by public processes. They are judicially administered in public proceedings. it is only thus that the right of representation and of due hearing of all legitimate submissions can be seen to have been accorded to parties subjected to the judicial process. Moreover publicity of proceedings is one of the great bastions against the exercise of arbitrary power as well as a re-assurance that justice is administered fairly and impartially.”¹⁷

2.12 Recently, the Federal Court of Australia had cause to consider the basis upon which a court may be closed to the public and the media.¹⁸ A judge of the Northern Territory Supreme Court granted an application for the defence that the court be closed so that certain confidential matters could be discussed. The Federal Court held the decision to be in error and stated that” to deny the public knowledge of any part of the proceedings of a court is a matter of gravity, especially where the court is exercising criminal jurisdiction.”¹⁹ The Federal Court outlined the circumstances in which a court may be closed in the following terms:

“In order that a court may accede to an application that it sit in camera, it must appear either that there is a statutory provision which enables it to do so, or that the case falls within one of the ‘strictly defined exceptions’ ... to the rule that the proceedings of courts of justice should be conducted publicly and in open court (Scott v. Scott) ... Apart from statute, a court has no discretion as to whether it sits in public or in private. That rule is as clearly established as it is essential to the preservation of confidence in the judicial system.”²⁰

2.13 Given the importance of the principle of administering justice in open court, it is clear that the news media occupy an important role in this process.²¹ In 1974 the Lord Chief justice of England said:

“Today, as everybody knows, the great body of the British public get their news of how justice is administered through the press or other mass media ... the presence or absence of the press is a vital factor in deciding whether a particular hearing was or was not in open court I find it difficult to imagine a case which can be said to be held publicly if the press have been actively excluded.”²²

The United States Supreme Court has also emphasised the important role of the news media:

“Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public.”²³

2.14 Although the news media and the public share the same right to be present in court the news media do not have any special rights in relation to court reporting.²⁴ As one commentator has said:

“Press reporters merely share the right of the public to be in a court and to take notes of the proceedings.”²⁵

Representatives of the news media often have special facilities provided for them in courtrooms which usually consist of separate seating and table facilities. However, even where these facilities are provided the presiding judge can still order journalists not to sit at the reporter’s desk and can order that they only take notes in the public gallery.²⁶

2.15 It is also to be observed that members of the public (who for our purposes may include intending authors of books and articles), as well as representatives of the news media, have the right to take written notes in court. Thus, the English Court of Appeal, when considering whether privilege attached to a transcript of shorthand notes taken of proceedings in a county court stated:

“... the proceedings in the county court were public. Any one present could listen and take a note of what the witnesses said.”²⁷

More recently, Lord Diplock, in a decision handed down by the House of Lords, stated that justice is to be administered in open court where anyone present may listen to and report what he said”.²⁸ He emphasized that one aspect of this principle:

“is that any document or portion of a document that is read out orally in open court can be taken down in shorthand by anyone competent to do so and can be published as part of a report of the proceedings in the court, even though after it has been read aloud it turns out that it ought not to have been because it is later ruled to be inadmissible in evidence.”²⁹

2.16 It would seem that this right is not always recognised in practice and members of the public have been asked, or directed, both by judges and court officers to desist from taking notes in court without any reason being given Yet in the recent case New South Wales Bar Association v. Livesey³⁰ both Hope J.A., and Reynolds J.A., of the New South Wales Court of Appeal stated during the proceedings that they could not understand why some judges have objected to members of the public taking notes in court.³¹ Obviously a Judge may prevent a person in court taking notes if he or she has reason to believe that they will be used improperly, for example, to influence future witnesses in the proceedings. However, the authorities clearly state that members of the public (and this includes interested observers, law students and persons who intend to write books or articles) are entitled to take written notes during court proceedings that are open to the public. This is an essential element of the principle that justice must be administered in open court where:

“members of the public, including, of course, journalists and reporters, have access to the trial and to the transcript of proceedings, and may, subject to the law of defamation and copyright publicly report, discuss, and comment on what has, through the trial entered the public domain.”³²

Exceptions to Open Justice

2.17 In our discussion of open justice we saw that courts may conduct proceedings in the absence of the public but that any departure from the principle that justice is to be administered in open court “must depend not on judicial discretion but the demands of justice itself.”³³ In Scott v. Scott,³⁴ the House of Lords stated:

“it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must of necessity be superseded by this paramount consideration The question is by no means one which consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.”³⁵

2.19 Apart from the power in all courts to hold proceedings in camera, some statutes confer a discretion on courts to hold proceedings in camera in specified circumstances. This following are examples of judicial proceedings which may be closed to the public and the media.

• Justices of the High Court of Australia have power to hear applications in chambers concerning, inter alia, the conduct of a matter or the custody, management or sale of property. Either party may, however, apply for an order that the application be heard in open court.³⁶

• The jurisdiction of the Federal Court of Australia may be exercised by a judge in chambers in certain limited circumstances.³⁷ The Federal Court Act 1976 (Cth.) also provides that:

“The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons, as the case may be would be contrary to the interests of justice.”³⁸

• As a general rule, the jurisdiction of the New South Wales Supreme Court cannot be exercised by a judge in chambers.³⁹ However, section 80 of the Supreme Court Act, 1970 specifically provides that the business of the court may be conducted in the absence of the public in certain circumstances. These include cases where the proceedings are not before a jury and are formal or non-contentious; where the presence of the public will defeat the ends of justice; where the business concerns the guardianship, custody and maintenance of an infant; and where the business does not involve the appearance before the court of any person.⁴⁰

• Certain powers of the New South Wales District Court may be exercised by a judge in chambers:

“A judge in chambers may, in respect of any proceedings, give any judgment or decision or make any order, which he could lawfully give or make in court and which he considers may be properly given or made in chambers...”⁴¹

• In New South Wales it is specifically provided that at any hearing or trial in a children’s court:

“any persons not directly interested in the case shall be excluded from the courtroom or place of hearing of the trial unless the court otherwise directs”.⁴²

• Committal proceedings before a magistrate in New South Wales may be closed to the press and the public pursuant to section 32 of the Justices Act, 1902 which declares that the place in which committal proceedings occur is not deemed to be an open court and:

“the Justice or Justices may, if it appears to him or them that the ends of justice will be best answered by so doing, order that no person shall have access to, or be, or remain in such room or building without his or their permission.”⁴³

• Until November 1983, proceedings in the Family Court were held in closed court. Section 97(1) of the Family Law Act 1975 (Cth) now provides:

“Subject to sub-section (2) and to the regulations, all proceedings in the Family Court, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act shall be heard in open court.”

As an exception to this rule, the court has power to make an order, inter alia, that only the parties to the proceedings, their legal representatives and such other persons (if any) specified by the court may be present in court during the proceedings or during a specified part of the proceedings.⁴⁴ The provision that proceedings under the Family Law Act 1975 (Cth) be held in open court was enacted following the recommendation of both the Family Law Council⁴⁵ and the Joint Select Committee on the Family Law Act.⁴⁶

Restrictions on Reporting

2.19 A court has two sources of authority to justify imposing restrictions on the reporting of its proceedings, the common law and statutes. A court may properly make orders under the common law that effectively blind people within the court, for example, an order that the name of the victim or a witness in a trial for blackmail not be disclosed.⁴⁷ However, there is some doubt whether a court has any power, other than that which maybe conferred by statute or the law of contempt, to make orders directed against the news media restricting their right to publish reports of the proceedings.

2.20 In Taylor v.Attorney-General,⁴⁸ the New Zealand Court of Appeal considered a ruling made by a trial Judge “prohibiting the publication of anything that may lead to the identification of officers of the New Zealand Security Services.” It was held that it was within the Judge’s inherent jurisdiction to make the ruling in question The House of Lords later referred to the New Zealand case in terms that cast doubt on its authority.

“It is not necessary to express an opinion on whether that case was rightly decided. It suffices for me to say that in my opinion the courts of this country have no such power, except when expressly given by statute.”⁴⁹

Of course, the fact that a court may not have inherent power to make an order forbidding the publication of certain evidence, including the name of a witness outside the courtroom, does not prevent any such publication being punished as a contempt of court should the publication constitute an interference with the administration of justice.⁵⁰

2.21 Apart from common law, courts may be given a statutory discretion to impose restrictions on the reporting of their proceedings. Courts in New South Wales have no such general statutory power, but do have specific powers which can be exercised in particular circumstances, for example, in cases concerning the adoption of children These powers will be examined shortly. In contrast, section 69 of the South Australian Evidence Act 1929 provides:

“Where a court considers it desirable to exercise powers conferred by this section -

(a) in the interests of the administration of justice; or

(b) in order to prevent undue prejudice or undue hardship to any person,

it may by order -

(c)...

(d) forbid the publication of specified evidence, or of any account or report of specified evidence either absolutely, or subject to conditions determined by the court, or

(e) forbid the publication of the name of

(i) any party or witness; or

(ii) any person alluded to in the course of proceedings before the court;

and of any other material tending to identify any such person.”⁵¹

2.22 Some New South Wales statutes confer a discretion on courts to impose restrictions on the reporting of proceedings, while others impose mandatory restrictions. The following are examples of New South Wales statutes which confer a discretion on courts to impose such restrictions.

• As we have seem section 80 of the Supreme Court Act, 1970 specifies the circumstances when “the business of the court may be conducted in the absence of the public”. it has been held that the power conferred by section 80 may be used to make an order preventing publication of the names of the parties in a Supreme Court action,⁵² although this is not specifically stated in the section.
• Section 44 of the Coroners Act, 1980 provides that a coroner holding an inquest or inquiry may order “that any evidence given at the inquest or inquiry being held by him be not published”. Where there is a finding or verdict in an inquest to the effect that the death of a person was self-inflicted, no report of the proceedings shall be published after the finding or verdict unless the coroner holding the inquest is of the opinion that it is desirable in the public interest to permit a report of the proceedings to be published.⁵³
• Section 578 of the Crimes Act, 1900 provides that any judge presiding at the trial of any person for a specified offence may, at any stage of the trial make an order forbidding publication of any or all of the evidence. The specified offences include:
  
  (i) sexual assault;

  (ii) acts of indecency; and

  (iii) abduction.

2.23 The following are examples of New South Wales statutes which impose a mandatory restriction on the reporting of court proceedings.

• Section 16(4) of the Child Welfare Act 1939 provides, inter alia, that the name of any child involved in a hearing or trial by a court or to whom a hearing or trial by a court relates, shall not in any case be published or broadcast.
• Section 53 of the Adoption of Children Act, 1963 provides that any person who publishes or broadcasts the name of an applicant for adoption or the name of the child, the father, mother or guardian of the child, or any matter reasonably likely to enable any of those persons to be identified, is guilty of an offence. An offence will not be committed if the court to which the application for adoption is made authorises the publication.

THE POWER OF A COURT TO PREVENT OR ALLOW THE USE OF RECORDING EQUIPMENT IN COURT

2.24 We have seen that representatives of the news media have the right to be present in court when the proceedings are open to the public, and share with the public the right to take notes of the proceedings. Apart from handwritten notes, it is technically possible to record the proceedings of a court by means of sound recorders and cameras. In this section we examine the power of a court to regulate the use of such recording equipment in the absence of statutory provision As we observe in Chapter 4, in England the use of a sound recorder in court without permission has been an offence since the enactment of the Contempt of Court Act 1981 (Eng.).⁵⁴

2.25 In New South Wales there is no statute which regulates’ the use of cameras and sound recorders in courtrooms. Control over the methods used to record the proceedings of a court can therefore only be effected pursuant to the inherent jurisdiction or power of a court to control its own proceedings. We now outline the principles underlying inherent jurisdiction and examine the manner in which they may be applied.

The Inherent Jurisdiction of Courts

2.26 It is stated in Halsbury’s Laws of England that

“A court exercising judicial functions has an inherent power to regulate its own procedure, save insofar as its procedure has been laid down by the enacted law...”⁵⁵

It is necessary to examine the extent of this jurisdiction and to ascertain whether it can be employed by a judge or magistrate to refuse a reporter or any other person the use of a sound recorder or camera to record the proceedings of a court Little has been written on the inherent jurisdiction of courts, and it has been said that:

“Its ubiquitous nature precludes any exhaustive enumeration of the powers which are thus exercised by the courts.”⁵⁶

Writing in 1970, Master I.H. Jacob of the English Supreme Court stated that:

“the source of the inherent jurisdiction of the court is derived from its nature as a court of law, so that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition”.⁵⁷

2.27 According to Jacob, superior courts of common law have exercised inherent jurisdiction from the “earliest time” and the exercise of this power has developed along two paths:

• regulating the practice of the court and preventing the abuse of its process, and
• punishment for contempt of court and of its process.⁵⁸

Jacob defines the inherent jurisdiction of a court as:

“being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary wherever it is just and equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression to do justice between the parties and to secure a fair trial between them”.⁵⁹

The juridical basis of inherent jurisdiction is:

“the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.”⁶⁰

Regulating Process and Proceedings

2.28 As stated above, the exercise of inherent jurisdiction has developed along two paths, the first leading to regulation of the practice of the court and the second to punishment for contempt of court. A court exercises the power to regulate its own process and proceedings in a wide variety of circumstances. It has been said that

“it is difficult to set the limits upon the powers of the court in the exercise of its inherent jurisdiction to control and regulate its process, for these limits are coincident with the needs of the court to fulfil its judicial functions in the administration of justice.”⁶¹

One example of the power of a court to control and regulate its process and proceedings is the power to make rules of court However, the creation of procedural rules of court does not exhaust the inherent jurisdiction of a court to control its own proceedings, but merely regulates this power.⁶²

2.29 Any rule or order made by a court which prohibits or places conditions upon the use of sound recorders or cameras must proceed from the court s inherent power to regulate its own proceedings. The question is, however, what limits, if any, circumscribe the power of a court to make such a ruling. The New South Wales Court of Appeal has stated that “the inherent jurisdiction could not exceed what is necessary for the administration of justice” and that inherent powers “are recognized and exercised because they are necessary for the administration of justice”.⁶³ Yet this leaves unanswered the question whether a ruling of a court prohibiting, for example, the use of sound recorders can only be made on the basis that the use of sound recorders will constitute an interference with the administration of justice.

2.30 The question can be illustrated by an example: a journalist enters a courtroom and proceeds to use an unobtrusive hand-held sound recorder with the intention of using the recording for compiling a fair and accurate report of the proceedings for later publication The use of the recorder will not interfere with the proceedings. If the judge rules that the sound recorder not be used, is the ruling a valid exercise of the courts inherent power?

2.31 Jacob states that the courts power to control its own practice and proceedings can be used “to prevent any obstruction or interference with the administration of justice”.⁶⁴ He does not make it clear whether this power can only be exercised to prevent any obstruction or interference with the administration of justice. If this was the case, then the judge in the illustration would have no power to order the journalist to stop Using sound recorder. In the United States, for example, the courts have limited the exercise of inherent powers by providing that

“inherent powers may be used only when reasonably necessary for the court to be able to function... Courts may not exercise inherent powers merely because their use would be convenient or desirable”.⁶⁵

On this approach there would be no legitimate basis for a court disallowing the use of a sound recorder where that use does not interfere with the proceedings. On the other hand the Privy Council in O’Toole v. Scott⁶⁶ has stated that the discretionary power of a magistrate to permit a person other than the informant or his counsel-to conduct the case for the informant:

“is an element or consequence of the inherent right of a judge or magistrate to regulate the proceedings in his court ... Its exercise should not be confined to cases where there is a strict necessity, it should be regarded as proper for a magistrate to exercise the discretion in order to secure or promote convenience and expedition in the administration of justice”.⁶⁷

2.32 This statement may appear to provide support for the view that a judge can make a ruling prohibiting the use of sound recorders in the court, not because it is necessary for the administration of justice but merely because the judge may consider it to be convenient. Such an interpretation arguably takes too broad a view of the inherent jurisdiction As we have seem there is language in a New South Wales case which suggests that a ruling made pursuant to the court s inherent jurisdiction should not exceed what is necessary for the administration of justice.⁶⁸ Moreover, the statement of the Privy Council in O’Toole v. Scott referred to in paragraph 2.31, was made in a particular context Indeed, their Lordships’ statement that the exercise of the discretionary power of a magistrate to permit a person other than the informant or his or her counsel to conduct the case for the informant might be “convenient for the dispatch of the court’s business”⁶⁹ suggests that the ruling was designed to promote the administration of justice.

2.33 Although there appear to be no Australian cases which have considered the validity of a ruling prohibiting or regulating the use of sound recorders in courts, the issue arose in lower courts in England before the enactment of the Contempt of Court Act 1981 (Eng.). The Phillimore Committee, whose report led to the 1981 Act considered the question of the use of sound recorders in court (otherwise than for official purposes), and observed “that difficulties about this do occasionally arise”.⁷⁰ The following are occasions when according to the periodic literature, English courts have had cause to consider the use of sound recorders in court

• In August 1964, a stipendiary magistrate, Mr. A.P. Babbing to be permitted a spectator to proceedings at the Bow Street court to record the proceedings. He decided that there was nothing to prevent the recording of the proceedings, and is quoted as saying, “You can sit and play it to your hearts content but you must stop it squeaking.”⁷¹

• In January, 1967, a tape recorder was brought into Banbury Magistrates’ Court by a man charged with receiving stolen property. After consulting the rest of the Bench the Chairman, Ald. J. Friswell, ordered the tape recorder to be turned off “because there was a possibility that it would only pick up snatches of the proceedings and so not give a true picture”.⁷²

• In May, 1971, at the Essex quarter sessions, a man in the public gallery was seen by the Deputy Chairman, Mr. Peter Greenwood, with at a tape recorder on his lap. The man in question said that he was a neighbour of the accused. A High Court judge sitting at the Essex Assizes in the same building was consulted and Mr. Greenwood then announced:

“As far as he knows and as far as I know, there is no statutory provision preventing people from having a tape recorder in court. But if it were a case of a person taking a tape of the evidence with the intention of letting it be heard by someone waiting outside the court to give evidence then the matter could be dealt with by way of contempt.⁷³

• In January, 1973, Judge King-Hamilton, Q.C., presiding at the Central Criminal Court (Old Bailey) ordered a spectator in the public gallery using a tape recorder to erase the tape and banned any further recording. He had taken this action he stated, because in the past improper use had been made of unauthorised tape recordings.

2.34 Other opinions have been expressed with respect to the power of a court to prevent the use of a tape recorder in court. The English Justice Clerk Society Conference of 1969 stated that there could be no objection to a party to proceedings in a Magistrates’ Court, or a member of the public, recording the proceedings by means of a portable tape recorder provided that the recorder was not run from the court s electricity supplies and that its use did not interfere with the conduct of the proceedings.

2.35 In an editorial in 1974, Justice of the Peace stated that the Crown Court might have inherent jurisdiction to prevent the use of tape recorders in court It was further stated:

“We are of the opinion that it is a power that the Crown Court should exercise with considerable caution. In the first place we can see no real objection to the use of a tape recorder as against any other form of speech recording be it manual or mechanical providing no disturbance is caused to the proceedings. In the second place the only sanction available to the judge to enforce his order would be that of contempt of court and ... it seems unlikely that the Court of Appeal would applaud any summary action in a case of this sort except on clear evidence of misuse of the recording. In any case to prejudge the issue and order the removal of the recorder and clearing of the tapes on the ground that they might be misused would surely be wrong.”⁷⁶

Finally, one commentator writing in relation to the use of tape recorders in court s(prior to the enactment of the Contempt of Court Act 1981 (Eng.)) expressed the opinion “that the court has an underlying discretion to prohibit such recordings if they interfere with the administration of justice”.⁷⁷

2.36 It is evident that the law is not clear on the question whether a judge or magistrate may make a valid order prohibiting the use of a sound recorder where there is no evidence that its use would interfere with the administration of justice. We believe that the preferable view is that such a ruling should only be made if the use of a sound recorder in a particular case has actually interfered with the administration of justice or if there is good reason to believe that use of a recorder, if allowed, will constitute an interference with the administration of justice. On this basis, sound recorders could reasonably be prohibited or restrictions placed on their use if, for example, the noise of their operation made it difficult to hear witnesses or if there were reason to believe that the recording would be used to brief future witnesses in a proceeding. If there were no interference or threatened interference with the administration of justice, there would be no basis for prohibiting the use of sound recorders.

Contempt of Court

2.37 It will be recalled that according to Jacob, the power to punish contempt of court is one aspect of the courts inherent jurisdiction.⁷⁸ Our discussion of contempt is in two parts. First, we examine whether the use of a sound recorder in court without any prior ruling of a judge prohibiting its use, constitutes an act of contempt Secondly, we examine the principles of contempt as a means of enforcing an order of a court prohibiting the use of sound recorders.

2.38 Contempt of court is usually divided into two categories: criminal contempt which includes the publication of words and the commission of acts which would tend to prejudice or interfere with the course of justice, and civil contempt, which consists of disobedience to certain court orders and judgments.⁷⁹ Lord Diplock has described civil contempt as “the mere disobedience by a party to a civil action of a specific order of the court made on him in that action”.⁸⁰ We are not here concerned with civil contempt or criminal contempt as it relates to publications. We are concerned with criminal contempt to the extent that it is relevant to controlling court proceedings. This category of the law of criminal contempt is usually referred to as “contempt in the face of the court”.

2.39 Contempt in the face of the court is conduct which interferes with the administration of justice in the court itself.⁸¹ Borrie and Lowe submit that:

“the best definition that can be given to the term is that the words or acts must interfere or tend to interfere with the course of justice, and that all the circumstances must be within the personal knowledge of the court”.⁸²

The clearest example of contempt in the face of the court is threatening (or actual assault of judges or any other person within the confines of the court.⁸³ Insulting or disrespectful behaviour in court may also constitute contempt.⁸⁴

2.40 The expression “interference with the course or administration of justice” plainly includes deliberate physical disturbance of a particular court proceeding. However, as pointed out by the New South Wales Court of Appeal it is not confined to actual physical disturbance:

“... it comprehends as well an interference with the authority of the courts in the sense that there may be a detraction from the influence of judicial decisions and an impairment of confidence and respect in the courts and their judgments.”⁸⁵

In this case, the six defendants had attended a Court of Petty Sessions to answer charges of trespass brought against them and, as they entered the courtroom had all made a gesture by raising the left arm with the hand or fist clenched. This was held to be contempt in the face of the court According to the Court of Appeal:

“Acts, words or other forms of behaviour which give the appearance of defying the authority of a Court of law or which by intimidation ridicule or otherwise tend to lessen the authority of the courts to administer the law and to seek to apply even-handed justice between parties in a calm and orderly manner may be regarded as contempt of Court.”⁸⁶

2.41 Even if a broad interpretation is given to the expression “interference with the course or administration of justice”, it is evident that where there has been no prior prohibitory order, the use of an unobtrusive sound recorder that does not interfere with the proceedings and the administration of justice will not constitute contempt in the face of the court. This is not to say that contempt can only be committed if a prior order has been made, but rather that where there has been no prior order, the use of a sound recorder must amount to an interference with the administration of justice in order for the offence of contempt to be established.

2.42 The situation may be different where the judge has made a prior order prohibiting the use of sound recorders. We have already examined the law in relation to the validity of such an order. For an order regulating the proceedings of a court to be valid, it should be necessary for the administration of justice.⁸⁷ Therefore, a breach of a valid order is capable of amounting to contempt as the breach interferes with. the administration of justice.

“At common law if the court makes an order regulating its own procedure and the purpose of the order is plainly to protect the administration of justice, then anyone who subverts that order will be guilty of contempt.”⁸⁸

If the order is not made for the administration of justice, then the order is invalid and no contempt for breach of the purported order can be committed. The conclusion that a breach of a valid order regulating court proceedings constitutes contempt was stated by Lord Widgery C.J. in delivering the judgment of the Divisional Court in Attorney-General v. Leveller Magazine Ltd:

“Every court has the power to control its own proceedings subject to the rules of evidence and general practice. An instance is the power to order witnesses out of court ... All such rulings are given (and only purported to be given) to those in court and not outside it A flouting in court of the court s ruling will be a contempt.”⁸⁹

SUMMARY

2.43 This chapter has examined the general principle (and its limited exceptions) that justice is to be administered in open court. The application of this principle has the result that members of the public and representatives of the news media have the right to be present in court and to report and comment upon the proceedings. The second part of the chapter examined the power of a court to regulate its own proceedings, including the power to control the use of recording equipment in court. We observed that in the absence of statutory provision control over the methods used to record the proceedings of a court can only be effected pursuant to the inherent jurisdiction or power of a court to control its own proceedings.

2.44 Although little has been written on the inherent jurisdiction of courts and, in particular, the limits that can be placed on its exercise, we suggest that a ruling prohibiting the use of sound recorders in court can be valid only if the use of a sound recorder in a particular case has actually interfered with the administration of justice or if there is reason to believe that such use would, if allowed, constitute an interference with the administration of justice. Finally, we discussed the power of a court to enforce a ruling prohibiting the use of sound recorders in court by punishing a breach of the ruling as a contempt of court.

2.45 In the next chapter we examine in general terms the functions and powers of Royal Commissions and Special Commissions of inquiry and, more specifically, how those powers can be used to control the means of recording the proceedings of such inquiries.

Terms of Reference | Participants | Consultation | Summary of Recommendations
CHAPTER 1 | CHAPTER 2 | CHAPTER 3 | CHAPTER 4 | CHAPTER 5 | CHAPTER 6
APPENDIX A | APPENDIX B | TABLE OF STATUTES | TABLE OF CASES
SELECT BIBLIOGRAPHY

Table of Contents

FOOTNOTES

1. Information supplied by the Court Reporting Branch of the Department of the Attorney General and of Justice.

2. In response to our request for information concerning the practice of recording court proceedings, letters were received from the Crown Solicitor, Tasmania, 14 July 1983: Department of Law, Northern Territory of Australia, 25 July 1983; Law Department, Victoria, 16 August 1983: Department of Justice, New Zealand, 23 August 1983; Crown Law Department of Western Australia, 6 September 1983; Attorney-Generals Department South Australia, 28 September 1983; Department of Justice, Queensland, 17 November 1983; and Attorney-Generals Department, Australian Capital Territory, 2 December 1983.

3. Contempt of Court Act 1981 (Eng), s.9.

4. P.C. Smith Press Law (1978), p.211.

5. [1982] 1 All E.R. 532.

6. Id., at p.536.

7. Attorney-General v. Leveller Magazine Ltd. [1979] A.C. 440, at p.450.

8. [1913] A.C. 417.

9. Id., at p.440. See also Daubney v. Cooper (1829) 10 B.& C. 237; 109 E.R. 438, at p.440:

“... it is one of the essential qualities of a Court of justice that its proceedings should be public, and that all parties who maybe desirous of hearing what is going on if there be room in the place for that purpose, - provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed,- have a right to be present for the purpose of hearing what is going on.”

10. Id., at p.463.

11. Id., at pp.437-438; also Earl Loreburn at p.445.

12. Id., at p.439.

13. Id., at p.442.

14. Dickason v. Dickason (1913) 17 C.L.R. 50, at p.51.

15. R. v. Hamilton (1930) 47 W.N. (N.S.W.) 84.

16. Id., at p.84.

17. R. v. Brady, 29 July 1977, Supreme Court of New South Wales, Court of Criminal Appeal Street C.J., Transcript of judgment, pp.3-4.

18. R. v. Tait and Bartley (1979) 24 A.LP, 473.

19. Id., at p.487.

20. Ibid. See also Russell v. Russell (1976) 134 C.L R, 495, where a provision in the Family Law Act 1975 (Cth.), which would have required the Supreme Courts of the States to exercise their matrimonial jurisdiction in closed court was held invalid. In this case, Gibbs J. stated:

“It is the ordinary rule of the Supreme Court as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’ (Scott v. Scott). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character To require a court invariably to sit in closed court is to alter the nature of the court.”(p.520)

The principle that justice must subject to certain limited exceptions, be administered in open court has recently been considered in New Zealand (see Broadcasting Corporation of New Zealand v. Attorney-General [1982] 1 N.Z.L.R. 120) and the United States (see Richmond Newspaper Inc v. Commonwealth of Virginia (1980) 448 U.S. 555; and G.M. Fenner and J.L Koley, “Access to judicial Proceedings: To Richmond Newspapers and Beyond” (1981) 16 Harvard Civil Rights - Civil Liberties Law Review 415).

21. See paras.5.3-5.11.

22. R. v. Denbigh justices, ex parte Williams [1974] 2 All E.P, 1052, per Lord Widgery C.J., at p.1056.

23. Richmond Newspapers Inc. v. Commonwealth of Virginia (1980) 448 U.S.555, per Burger C.J., at pp.572-573.

24. In re Andrew Dunn and The Morning Bulletin Ltd. [1932] St.R.Qd. 1.

25. G. Sawer,” Privilege” in The Australian Press Council To Name or Not to Name (1980), p.10. In Arnold v. The King Emperor (1914) 30 T.L.R. 462, at p.468, Lord Shaw stated:

“Their Lordships regret to find that there appeared on the one side in this case the time-worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute-law, his privilege is no other and no higher.”

26. Note 24 above.

27. Lambert v. Home [1914] 3 K.B. 86, at p.90. See also the statement by Lord Tenterden C.J. in Collier v. Hicks (1831) 2 B. & A.D. 663; 109 E.R. 1290, at p.1292:

“Any person whether he be a professional man or not, may attend [court] as a friend of either party, may take notes, may quietly make suggestions, and give advice.”

28. Home Office v. Harman [1982] 1 All E.R. 532, at p.537.

29. Ibid.

30. [1982] 2 N.S.W.L.R. 231.

31. Transcript Record of Proceedings, p.195.

32. Note 28 above, per Lord Scarman, at p.546.

33. Broadcasting Corporation of New Zealand v. Attorney-General [1982] 1 N.Z.L.R. 120, per Woodhouse P., at p.123.

34. [1913] A.C.417.

35. Id., per Viscount Haldane L.C., at pp.437-438..

36. Judiciary Act 1903 (Cth.), s.16. See also High Court Rules, Order 52. Proceedings in chambers are held in private and members of the public are not admitted. See Halsbury’s Laws of England (4th ed., 1982), vol.37, para.345 and The Law Commission, Report on the Powers of Appeal Courts to Sit in Private and The Restrictions Upon Publicity in Domestic Proceedings (Cmnd.3149, 1966), para.3.

37. Federal Court of Australia Act 1976 (Cth), s.17.

38. Id., s.17(4). This section was considered by the Federal Court in Australian Broadcasting Commission v. Parish (1980) 29 A.L.R. 228.

39. Supreme Court Act 1970, s.11. It has been held that a Master, although not a member of the Supreme Court constitutes the court for the purpose of the exercise of powers conferred by the Supreme Court Act: The Commonwealth v. Hospital Contribution Fund of Australia (1982) 56 A.L.J.R. 588.

40. Id., s.80. See also Supreme Court Rules, Part 73 rule 11 and part 78 rules 9 and 41.

41. District Court Act, 1973, s.37(1).

42. Child Welfare Act 1939, s.16(1). This Act is to be wholly repealed on a day to be appointed, by the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act, 1982. The Community Welfare Act, 1982, which has yet to be proclaimed, provides that any person not directly interested in the proceedings shall be excluded from the Children’s Court but that “any persons bona fide engaged in reporting or commenting upon the proceedings of the court for dissemination through a public news medium shall not be excluded’ unless the court otherwise directs: s.186(1).

43. Cf. Evidence Act 1929 (S.A.), s.69(1); Magistrates’ Courts Act 1980 (U.K.), s.8: R. v. Leeds justices, ex parte Sykes [1983] 1 All E. R. 460. See also” Publicity of Committal Proceedings” (1958) 31 Australian Law Journal 629.

44. Family Law Act 1975 (Cth.), s.97(2).

45. Family Law Council, First Annual Report 1977 (1977), paras.106-1 11.

46. Joint Select Committee on the Family Law Act Family Law in Australia (1980), Chapter 9. In Russell v. Russell (1976) 134 C.LR. 495, the High Court held that the requirement of a closed court in s.97 prior to it being amended was invalid insofar as it purported to apply to State Supreme Courts exercising federal jurisdiction under the Family Law Act 1975 (Cth.).

47. R. v. Socialist Worker Printers and Publishers Ltd; ex parte Attorney-General [1975] 1 All E.R., 142.

48. [1975] 2 N.Z.L.R. 675.

49. Attorney-General v. Leveller Magazine Ltd. [1979] A.C. 440, at p.456.

50. Ibid.

51. The original section 69, which was more limited in scope, was repealed in 1979 and replaced by the present section. It has been said that section 69:

“was intended by parliament to set out exhaustively the extent of the powers of courts in the State to prohibit publication of legal proceedings. The section is a statutory code as to those powers and would operate to supersede and abrogate any pre-existing inherent jurisdiction to prohibit publication of proceedings.”

Attorney-General v. Kernahan [1981] 28 S.A.S.R. 313, per King C.J., at p.314.

52. G. v. Day [1982] 1 N.S.W.L.R. 24, at p.41.

53. Coroners Act, 1980, s.44(3), (4).

54. Paras.4.5-4.6.

55. Halsbury’s Laws of England (4th ed., 1975), vol 10, para.703.

56. K Mason, “The Inherent jurisdiction of the Court” (1983) 57 Australian Law Journal 449, at p.449.

57. I.H. Jacob, “The Inherent jurisdiction of the Court” (1970) 23 Current Legal Problems 23, at p.24.

58. Id., p.25.

59. Id., p.51.

60. Id., p.28.

61. Id., p.33.

62. Id., p.34.

63. Riley McKay Pty. Ltd. v. McKay [1982] 1 N.S.W.L.R. 264, at p.270.

64. Note 57 above, p.32.

65. S.D. Baskin, “Protective Orders Against the Dress and the Inherent Powers of the Court” (1977) 87 Yale Law Journal 342, at pp.351-352.

66. [1965] A.C. 939, at p.959.

67. Id, at p.959.

68. Para.2.29.

69. Note 66 above, at p.954. By way of comparison it is pertinent to refer to the decision of the Supreme Court of Queensland in In re Andrew Dunn and the Morning Bulletin Ltd. [1932] St.R. Qd. 1. in that case, the court considered a ruling of a judge who, resenting certain criticisms of him that had been published in a local newspaper, made an order forbidding the reporters of the newspaper and of another newspaper owned by the same company to sit at the reporters desk or take notes of the proceedings in his court elsewhere than in the public gallery. This wag clearly a ruling made on the same basis as an order prohibiting the use of sound recorders in court, namely, an order made pursuant to the inherent power of a judge to regulate and control the court s proceedings. The court held that the ruling of the judge was not a judicial order, but an administrative order and was therefore not subject to appeal. It was therefore not necessary for the court to determine the validity of the ruling, having held that it was not subject to appeal. However, E.A. Douglas J., stated that the “order was not in excess of the Judge’s powers” (p.17). On the other hand, R.J. Douglas J., stated that the power of a judge to regulate the conduct of the court “should be exercised with a wise discretion and with the sole idea of promoting the interests of justice” (p.15). He further stated that the judge’s ruling was made:

“not for the purpose of duly regulating his court, but for the purpose of punishing a person against whom he felt himself aggrieved in his judicial capacity. I can only say that I personally would not have made such an order, but that this court cannot interfere with it.” (p.16)

70. Report of the Committee on Contempt of Court (Cmnd.5794, 1974), para.42.

71. (1964) 128 Justice of the Peace and Local Government Review 597, at p.606.

72. (1967) 131 Justice of the Peace and Local Government Review 144, at p.145.,

73. (1971) 135 Justice of the Peace and Local Government Review 460, at p.460.

74. (1973) 137 Justice of the Peace 81, at p.81.

75. (1969) 133 Justice of the Peace and Local Government Review 434, at p.446.

76. (1974) 138 justice of the Peace 426, at p.427.

77. B. Harris. The Courts, The Press and the Public (1976), p.54.

78. Para.2.27. With respect to the jurisdiction to punish for contempt as a general rule, a “superior court of record” has jurisdiction to deal summarily with any contempt which affects its own proceedings. In New South Wales, the Supreme Court, the Land and Environment Court and the Industrial Commission are superior courts of record (Supreme Court Act 1970, s.22; Land and Environment Court Act 1979, s.5(1); Industrial Arbitration Act, 1940, s.14(1)). An “inferior court of record” has jurisdiction to deal only with contempt committed in the face of the court while “inferior courts not of record” do not have jurisdiction to deal with contempt unless jurisdiction is conferred pursuant to statute. Both the District Court and the Workers’ Compensation Commission of New South Wales are inferior courts of record (District Court Act, 1973, s.8(2); Workers’ Compensation Act 1926, s.31(1)). Although Courts of Petty Sessions are not statutory courts of record, these courts would normally be classed as courts of record as the question whether a court is a court of record depends in general upon whether it has power to fine or imprison (Halsbury’s Laws of England (4th ed.,.1975), vol 10, para.709). In any event Courts of Petty Sessions have statutory power to deal with contempt (Justices Act 1902, s.152). The Coroners Court is a court of record (Attorney-General v. Mirror Newpapers Ltd. [1980] 1 N.S.W.L.R 374) and also has statutory power to punish acts of contempt (Coroners Act, 1980, s.43).

79. See generally, A. Arlidge and D. Eady, The Law of Contempt (1982): G. Borrie and N. Lowe, The Law of Contempt (1973); C.J. Miller, Contempt of Court (1976): G.A. Flick, Civil Liberties in Australia (1981), C115. In the recent case Jendell Australia Pty.Ltd. v. Kesby [1983] 1 N.S.W.L.R 127, McLelland J., referred to the different sanctions imposed for civil contempt and criminal contempt and stated:

“The purpose of the imposition of sanctions for civil contempt is the enforcement of private rights as between the parties: in such a case the sanctions are of a coercive or remedial nature. The purpose of the imposition of sanctions for criminal contempt is the protection of the public interest in the due administration of justice, including vindication of the authority of the courts: in such a case the sanctions are of a punitive nature.” (p.133).

80. Attorney-General v. Times Newspapers Ltd. [1974] A.C. 273, at p.307.

81. Miller, note 79 above, p.48.

82. Borrie and Lowe, note 79 above, p.7. See also Parashuram Detaram Shamdasani v. King-Emperor [1945] A.C. 264, at p.268.

83. Borrie and Lowe, note 79 above, pp. 10-13.

84. Miller, note 79 above, pp.51-53.

85. Ex parte Tuckerman; Re Nash [1970] 3 N.S.W.R. 23, at p.27.

86. Id., at p.28.

87. See paras.2.28-2.36; In re Andrew Dunn and The Morning Bulletin Ltd. [1932] St R. Qd. 1, per PJ. Douglas J. at p.15.

88. Arlidge and Eady, note 79 above, para.4-151.

89. [1978] 3 All E.R 731, at p.736.