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[edit] Contempt of court, sub judice and reporting on minors in Australia

[edit] Children in Court

"All States and Territories ban the naming of children charged with criminal offences. Jurisdictions vary in other aspects of reporting cases involving children on a number of grounds. For example, a person aged 17 or over at the time of the offence is deemed to be an adult under criminal law of Queensland, Victoria and Tasmania, whereas they must be 18 to be an adult in other jurisdictions. In some States the court will allow the media to be present during Children's Court cases, but will restrict their reportage either totally or on the point of identification of the child. Laws vary on the identification of child witnesses."

(Ref: Pearson)

[edit] Contempt and sub judice

Sub judice contempt comes into play as soon as proceedings are pending - when a person is arrested or an arrest warrant or summons is issued until judgment has been handed down, and often, until the final avenues of appeal have lapsed. Breaches of court orders can also result in a contempt action - publishing information that the court has said cannot be published. Contempt of court is a criminal offence in Australia, and reporters and editors have been jailed

Contempt rules are relatively similar in all jurisdictions, but be aware that special commissions of inquiry that are set up from time to time may have their own rules about contempt.

Contempt laws are designed to ensure court cases are conducted fairly and without influence. They are also supposed to strike a balance between the right to a fair trial and free speech.

In Australia, it is likely to be contempt of court if you publish the following once proceedings are pending:

  1. material asserting or implying the guilt or innocence of an accused;
  2. material reflecting on an accused's character, including publishing prejudicial information about a person shortly before or during the hearing;
  3. an accused person's criminal record and convictions before conviction or acquittal;
  4. any evidence until it is given in open court;
  5. the existence of or contents of an alleged confession unless it has been read in open court;
  6. images identifying the accused in cases where identification may be an issue (it usually is in violent crimes);
  7. material that may adversely affect the witnesses or the evaluation by the jury of their evidence;
  8. any material that would be inadmissible in a trial.

Note: Information given by the police is not immune from contempt prosecution. Police media releases and police statements often contain material that would be considered contempt if published during trial.

"You may well ask why, if the identity of suspects during police hunts and the details of crimes are published, as they often are, these stories are not in contempt? The distinction (which was clarified in a famous case during the 1960s) is that criminal proceedings are not actually pending until a person is arrested and charged...Once an arrest is made or is imminent, contempt restrictions apply. You may not identify the accused before their court appearance - which is why arrest stories lack detail and may seem disjointed. If an arrest is imminent, this could affect the story because the arrest may occur between the time of filing and the time the paper is published." (Ref: White, Sally, A., Reporting in Australia, Macmillan Publishers Australia, South Yarra, 2001, pp 135-137)

(Refs: Lockwood; White)

[edit] Crime, court reporting and restrictions

Level of reporting allowed at each stage of the criminal judicial process
Stage of judicial process Restrictions on reporting
After crime, before arrest No restrictions for contempt, but be mindful of defamation and ensure availability of a defence against defamation allegations
After arrest, before charging Reporting limited to the 'bare facts' of the crime, with no information which might identify the suspect or prejudice a future jury against the suspect.
After charging, before trial As above but court appearances and committal hearings can be carefully reported under the principle that the public interest in an open justice system usually takes precedence over the public interest in an unprejudiced hearing. No photographs or sketches if identification is an issue.
During trial Reporting is restricted to a fair and accurate report of the trial and a description of the 'bare facts' of the crime. No photographs or sketches are allowed if identification is an issue.
After trial, before opportunity to appeal expires Reporting with care, avoiding anything of an extreme or overly sensational nature which might influence a jury or witness during a retrial or appeal.

Defamation claims are still an issue, although fair reporting of the court case is protected.
After appeal or acquittal No sub judice restrictions, but risk of defamation claim is still a concern

(Ref: Pearson, Mark, The Journalists Guide to Media Law, Allen and Unwin, Crows Nest, NSW, 1997)

[edit] References

  • Anderson, David, A., Pitfalls in the Law for Journalists, Mando Publications, Queensland, 1996
  • Conley, David, The Daily Miracle, Oxford University Press, Melbourne, 2000
  • Granato, Len, Newspaper Feature Writing, University of New South Wales Press (in association with Deakin University), Sydney, 2002
  • Lockwood, Kim, Style: The essential guide for journalists and professional writers, News Limited, Griffin press, 2005
  • Professor Mark Pearson, Media Law and Ethics: Study Guide, JRN 94507, School of Journalism, Bond University, 2001;
  • Pearson, Mark, The Journalists Guide to Media Law, Allen and Unwin, Crows Nest, NSW, 1997
  • White, Sally, A., Reporting in Australia, Macmillan Publishers Australia, South Yarra, 2001