Court Proceedings Need To Be Seen To Be Understood

By its very nature, defamation attracts public attention. Very few of us fail to exhibit at least some interest in public allegations of defamation, particularly if they concern the well-known or powerfull.

For instance, we debated whether the giant former SAS soldier and Victoria Cross recipient, Ben Roberts-Smith acted wisely in bringing a defamation action against newspapers that published allegations that he committed acts amounting to war crimes whilst serving in Afghanistan. He did not succeed in his action and seemingly further damaged his reputation. But, he has filed an appeal

Alan Jones, a former radio talk-back host dominated radio waves for decades, and was once said to wield more power and influence than anyone else in Australia. Last week he announced that he will bring an action for defamation against a television network and possibly others who published allegations of his improper sexual conduct towards several young men. If this threatened legal action ends up in court, it will be additionally interesting because of other historic allegations resurrected by the press in the last few days. One related to an 1988 charge of outraging public decency for which Mr Jones was arrested in London. The charge was subsequently withdrawn.  Others related incidents are alleged to date back to the early 1970s. These would be highly likely to  be brought into evidence.

However, we need not look to past or potential defamation cases to underline the level of public interest that defamation proceedings attract.

The court hearing of a defamation action by Liberal Party staffer, Bruce Lehrmann, is the current high-profile defamation case in Australia. Mr Lehrmann alleges that he was defamed by a television network, and a prominent journalist/television host. They, he argues, aired the allegation that he raped Brittany Higgins, a junior colleague, in a federal parliament ministerial office. The alleged sexual assault has gained and held the nation’s attention for the past 3 years.

A number of factors, apart from the alleged sexual assault, account for the high level of public interest. These include the alleged mishandling of Brittany Higgins’ allegation by parliamentary staff and Ministers of the crown, the Prime Minister’s public apology to Ms Higgins, the accolades accorded to journalist Lisa Wilkinson for her exclusive television interview with Ms Higgins, Ms Higgins’ role as the face of Australia’s ‘Me Too’ movement, the federal government’s $2.3 million payout to Ms Higgins, criminal proceedings against Ms Lehrmann being aborted following juror misconduct, the Director of Public Prosecution’s decision against a second trial due to fears for Ms Higgins mental health, the settling of Mr Learhman’s defamation actions against the ABC and Channel 7 media networks, and finally the current Federal Court hearing before Justice Michael Lee of Mr Learhman’s defamation action against Channel 10 and journalist Lisa Wilkinson.

In recognition of the extraordinary level of public interest in the hearing and the importance of ensuring that the hearing is open to the public so that they can witness and determine whether justice has been done, Justice Lee directed that the hearing be streamed live on YouTube. Chanel Ten’s lawyers’ arguments in opposition to the proposal to stream the proceedings were not accepted by Justice Lee. An article from Gilbert and Tobin clearly sets out the arguments and the basis of Justice Lee’s decision.

The Federal Court of Australia was among the first Australian courts to permit audio-visual recording of proceedings or segments of proceedings by television networks. More commonly, the Court itself has recorded and streamed such recordings online.

In 1995 the then Federal Court Chief Justice Michael Black commissioned me to understate a study of Australian and overseas experiences with audio-visual recording and broadcast of court proceedings and on the basis of findings to make recommendations regarding future televising of proceedings by the Federal Court. The Electronic Media Coverage of Courts report was published in December 1998.

In the Report I concluded that both the experiences of Australian and comparable overseas courts and the principles of Open Justice called for recordings of proceedings, or at least segments of proceedings, to be made available to the media and/or preferably directly to the public via the Internet. In addition the Report submitted that it was insufficient for courts to simply rely on media requests to record and broadcast.

Twenty five years after the Report, I note that a number of Australian courts record proceedings, or segments such as sentencing remarks, to promote public confidence in the judicial process, by enabling public acquisition of a first hand understanding of court proceedings required for informed public debate.

I suggest that the court hearing of the Lehrmann defamation case illustrates the many actual and potential benefits of live streaming of court proceedings.

The live streaming provides yet another illustration of why reliance on media reporting is in itself insufficient, if not inappropriate, to constitute open justice. The media have provided updates and commentary on the Lehrmann hearings but with some exceptions have not reminded, let alone encouraged the public to watch the proceedings live for themselves. That’s not intended so much as a criticism but rather as a recognition that it would be a conflict of interest for the media to steer the public to watch the livestream, rather than rely on the media’s secondhand edited coverage.

The live-streaming has been fabulous. The vision of the hearing is recorded by cameras focused on Justice Lee sitting on the bench, on barristers at the bar table with solicitors and public gallery behind them, and a third camera focused on the witness box. 

I suggest that there are benefits to be gained from such streaming. Permitting viewers to determine for themselves whether justice has been done – not merely in the outcome but through the law and judicial process is one.

The streamed recording of the Lerhmann defamation hearing, I suggest, are the ultimate introduction to civil proceedings, a primer on defamation law, and master class on our laws of procedure and evidence. In particular the streaming is an opportunity to observe the forensic examination skills of some of our best barristers, and legal arguments they present, which are rarely reported in any detail.

While the public may be more familiar with the largely detached and silent role of Australian judges in criminal cases, Justice Lee’s work illustrates the functions of a judge in civil proceedings such as the Lehmann case. I was particularly struck by Justice Lee’s encyclopedic knowledge of relevant legal authorities – something that was also noted by one or more of the barristers.

It was also fascinating to watch Justice Lee formulate and dictate detailed reasons for his rulings on a legal question – whether an experienced but formally unqualified deaf forensic lip reader could be considered an expert witness. Watching Justice Lee set out the reasons for his ruling on this point of law, also illustrated to lay observers how decisions in earlier cases may be used to determine the law on issues at hand, and especially those not specifically addressed by legislation.

When recordings of actual Australian proceedings are viewed they almost invariably elicit expressions of surprise as to how different they are to what we’re accustomed to seeing in films or on TV. The court process simply has to be seen to be appreciated and understood.

Media reporting and commentary of the Lehrmann defamation action tends to focus on sensational sound grabs, while the viewing of the unedited footage enables what is said in court to be understood in context. If the media were interested in assisting their readers/viewers and listeners to gain context and depth or follow up specific or further interests they could so easily offer directions not only to the Federal Court’s streaming, but also to the Court’s website where interested members of the public can view documents and other materials relating to the case. The availability of such materials on the courts’website demonstrates that more of our courts have come to accept that it is the court’s rather than the media’s role to educate or enable the public to decide for themselves on the basis of first hand observations.

Ideally I would like to see public access to unedited recordings supplemented by summaries and explanations of the proceedings.  This, for the reasons set out above, I continue to urge needs to be undertaken by our courts or other legal institutions.