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Judicial smack-down on cameras in courts

By Steven | May 8, 2008

Memo from Justice Fogarty to almost every other judge in the country: You are breaking the law. You are riding roughshod over the presumption of innocence. You are punishing defendants before they have been convicted. You are shirking your duty to ensure that witnesses are not inhibited by cameras in court. You are not doing justice according to law.

I’m paraphrasing, but not over-stating, the guts of Justice Fogarty’s decision in R v Sila. He has raised his judicial digit to the bulk of his NZ brethren. It is, as I said in the Herald, a slap in the face for the judges, including a current Supreme Court judge, who have carefully developed the guidelines for cameras in court over the last decade, and those who have been applying them during that time.

Justice Fogarty’s argument: the guidelines for cameras in court “are not a correct statement of law”. This is because they allow the media to film defendants sitting in the dock, “a public humiliation, akin to the ancient punishment of pillory.” (I think they’re more closely akin to the stocks, which it seems were less likely to result in convicts being branded, flogged or having an ear cut off).

It’s also because the guidelines allow witnesses to agree to be filmed – witnesses who may not be a good position to judge how detrimental the presence of cameras will be to their evidence.

Therefore, says Fogarty J, the guidelines allow defendants to be punished before they have been convicted – an abrogation of their right to be presumed innocent. And they affect the fairness of a trial by permitting witnesses to consent to the presence of cameras that might interfere with their evidence. A judge has an overriding duty to secure justice according to law. The guidelines, which permit that duty to be traded off against lesser principles such as open justice, freedom of expression, and the watchdog role of the media, must be illegal.

The fact that this reasoning flies in the face of NZ’s judicial consensus is pretty extraordinary. But what’s more gob-smacking is that Fogarty J didn’t take the low-key option of simply noting that the guidelines were merely guidelines, not legal rules, and simply applying his own discretion. Oh, no. He issued declarations that two of the guidelines were illegal. Despite the fact that no party had applied for those declarations. Despite the fact that the argument had not been addressed to a general ruling. Despite the fact that his power to issue them is based on what looks to me like an extremely elastic view of his inherent powers. For non-legal types: inherent jurisdiction is a magical hat from which judges produce hitherdo undiscovered powers when they find they need them to do justice. (My argument, for the legal boffins, is that it’s a long stretch from an inherent jurisdiction to suppress a name – Taylor v A-G, which Fogarty relies on –  to an inherent jurisdiction to issue a general declaration that wasn’t sought and wasn’t, I think, necessary to enable the court to act effectively with the issue before him.)

Suffice to say, I think a number of judicial eyebrows will have gone into orbit after they first encountered this decision.

Still, in issuing these declarations, Fogarty J has raised the stakes. I think District Court judges would have to treat themselves as bound by this decision, rather than the guidelines. And from now on, High Court judges can no longer merrily apply the guidelines, and will need to address a prelimary question: do they agree with Fogarty J that chunks of them are illegal?

Should they? Is Fogarty J right? I don’t think so. Let’s look at the two issues. First, the filming of the accused: is this a form of pillory that effectively punishes the defendant and undermines the presumption of innocence? Well, true, accused people will be harmed, whether they’re innocent or guilty, by such coverage. Probably more harmed than simply by missing out on name suppression, as the judge argues. But he forgets one big thing: the media (or some of them) can still say, “stuff the in-court rules, we won’t make any application, we’ll film the bugger going into court instead.” Upshot: defendant pilloried anyway. The judge’s rulings won’t necessarily achieve their aim. To the extent that they infringe freedom of expression under the Bill of Rights Act (and the judge accepts that the Bill of Rights is triggered), it’s hard to say they’re a justified and proportionate restriction on the media’s rights to report trials if the protective restriction can be so easily circumvented.

In any event, it’s drawing a long bow to say that filming an accused person infringes the presumption of innocence.

It’s drawing an even longer bow to suggest that the common law says so. As Justice Fogarty points out, Britain has legislated to outlaw photographing and sketching of defendants. But he doesn’t tease out the the natural implication: Britain needed to legislate because the common law didn’t outlaw them. I guess he’s concluded that the common law has evolved. He cites no authority for that. He says numerous common law judges agree with him. He cites no authority for that either, though it’s probably true. On the other hand, I’m sure that plenty don’t.

Before he issued such a sweeping judgement, I would have liked to see the judge make a closer analysis of the evidence and principles in play. Given that the danger to the presumption of innocence here is, at best, a peripheral one, I don’t think it’s legitimate to use it to trump the other principles in play: open justice and freedom of expression. The guidelines themselves strike me as the product of a careful balancing of principles and experience that seems absent in Justice Fogarty’s reasoning.

What about the second issue? Should judges be given a power to override a witnesses acceptance of the recording of their evidence? Justice Fogarty cites evidence that many witnesses in filmed cases said they were distracted by the cameras. It’s not clear what impact this had on their evidence though.

He reasons that:

Honest witnesses can hestitate, and correct their recall [for example, he added later, when they were confronted with earlier inconsistent statements]. They may be inhibited from doing so, if their hesitations and corrections are to be are to be on the evening news.

Yes, rather than admitting to those inconsistencies or errors, no doubt witnesses would rather see them mercilessly exposed in cross-examination on the evening news. I’d like to see some more evidence before making up my mind about this (the judge cites a Australian article, which I confess I should read). Still, I’m inclined to be comforted by the fact that the guidelines were drawn up by experienced judges.

It should be noted that the judge did allow the adult witnesses to be filmed in this case if they chose.

Topics: Suppression orders | 2 Comments »

2 Responses to “Judicial smack-down on cameras in courts”

  1. Will de Cleene Says:
    May 8th, 2008 at 11:05 pm

    Fogarty has a point. The entire basis of law is based on the existence of doubt. What If We’re Wrong? Hence the axiom, better let twenty guilty go free, than one innocent man be punished.

    While the well-placed can seek name suppression, the poor do not have these options. While kiddie-fiddler Graham Caphill can get blurred on camera, the same defence is not available to the penny-less defendants.

    The pillory exists, and it falls on the lower income brackets disproportionately. There is not one law for all.

    Sure, defendants can get mugged by the media scrum outside the courtroom. However, the courtroom belongs to the judge, not the media. Bring back the note- takers and sketch artists, I say. Unobstructive, neutral. And we’d be spared further Antonie Dixon-type stares.

  2. Tim Selwyn Says:
    May 10th, 2008 at 3:20 am

    What an incredible ruling. But thought provoking.

    Why does Fogarty think it’s a pillory on TV when the community can stand around and gawp at the defendant in the dock from the public gallery of any court – as a general rule? Is his problem that they are in a dock at all – perhaps they should always be seated next to their lawyer on their table?

    And what of witnesses consenting to being taped – that means some of them do not. Then we have biased coverage which will focus on the witnesses who have given consent and therefore will create a distorted media report. What will TV run that evening – pictures. No pictures = no coverage.

    But I personally know that having cameras bearing down on you as a defendant inside a courtroom makes an agonising ordeal even worse. Christ only knows what the witnesses must have thought.

    Let’s never kid ourselves about the courtroom and the media: the press are there for vicarious voyeurism pure and simple. Public watchdogs they are not – they are not bearing witness on behalf of the community to see that justice is done and to keep judges and the justice system honest – that does not seem their primary function these days. Their presence there is to ensure that their audience can be provided with enough emotion-enducing titillation to get them through the next ad break. Blow by blow accounts at depositions, edited into dramatic montages of selected things the camera operator thought looked incriminating and relayed via the mass media for days or weeks is incredibly unhelpful to a later trial is it not?

    I think there should be a static discreet camera in front of the bench and others set on the dock, witness stand, judge etc. and these images put together as a sort of multi-screen image like a security tape – cut 4, 5 or 6 ways. That can be available to the media. I wouldn’t be surprised if somewhere in the States they don’t already do it. It would be unobtrusive and achieve the same result wouldn’t it? The media companies could do whatever they want with the feed. Stream it live on the internet?

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