New laws in NSW have extended to the media a ‘presumption in favour’ of being allowed to broadcast final court proceedings such as the sentencing of offenders in certain criminal cases. A ‘presumption in favour’ means that applications should be granted unless there are good reasons for their refusal. However, not all judges are apparently willing to open their doors.
The ABC recently reported the denial by Downing Centre District Court of applications by several media organisations to film the sentencing of the former Bega Cheese CEO, Maurice Van Ryn. Van Ryn pleaded guilty to committing child sexual abuse between 2003 and 2014.
His sentencing is a matter of great public interest, but the District Court Judge nevertheless refused to allow the proceedings to be filmed.
Broadcasting laws in NSW
NSW has led the way in Australia with broadcasting laws allowing the filming of court proceedings. The new laws allow media organisations to apply to the court for permission to film the final proceedings in criminal cases and judgements in civil cases in the supreme and district courts.
The new laws give broadcasting organisations a presumption in favour of allowing their application.
The NSW Justice Department notes the limits placed on the presumption of broadcast within the NSW legislation. It states that proceedings will not be broadcast where:
- The identities of jurors, protected witnesses or victims would be revealed.
- Significant material subject to suppression orders, or material that would prejudice other trials or police investigations, is involved.
- The safety or security of someone would be put at risk.
- The chief judge or justice has directed the proceedings can’t be broadcast due to the detrimental effect on the orderly administration of the court.
The passing of the new laws created hope for a system of more open justice and judicial transparency, but the power to open the doors to the media still lies with the court.
What happens at a sentencing hearing?
The final proceeding of a criminal case is the sentencing hearing.
A sentence hearing is not as simple as a judge giving the terms of punishment to the accused, which is called the ‘judgment’.
A sentence hearing normally involves a lot of dialogue from both the prosecution and the defence.
It may include:
- The reading of victim impact statements.
- Testimony from character referees, psychologists, family members and others.
- Submissions from both parties about aggravating and mitigating factors of the offence.
- Reading of exerts from reports of psychiatrist or psychologists.
- Details about past offences and time, and
- Submissions from the defence about the appropriate sentence.
When sentencing an accused, the court must take into account a whole range of factors, including:
- The facts and circumstances of the offence.
- The personal situation and other personal relevant factors of the offender.
- The relevant sentencing laws, including the maximum penalties, any ‘standard non parole period’, any sentencing statistics, similar cases etc, and
- Time already served for the current offence.
Unless a person has experienced a sentence hearing before, they are often surprised by the amount of information that is brought before the court – which is essential to enable the sentencing judge to make a fully-informed determination regarding the appropriate penalty.
Should Van Ryn’s sentencing judgement be broadcast?
Van Ryn’s case is a criminal matter, and so the presumptions of permission to broadcast are present. However, the case would also appear to fall under the exceptions in regard to identifying the victims.
But in this case, the victims’ families actually criticised the decision not to allow the broadcast of the sentencing hearing, releasing a statement stating they had not been told about the application.
“We understand only too well the importance of protecting the identity of the child victims of Maurice Van Ryn,” the families said.
“However, it is our understanding that the judge would be equally bound by the requirements of the court to protect their identities and this could be achieved by prudent wording of his sentencing decision.”
The statement, as reported by the ABC, also said that some recent sentences had not met community expectations, and broadcasting sentencing hearings put the judiciary under greater public scrutiny.
Balancing the needs of the parties
While shining a light on the judicial process so it is more transparent and the public can see how a particular sentence is arrived at is a good thing, the judge must also take into account the competing factors already listed.
Although in this case, the families of the victims were supportive of the proceedings being broadcast, the protection of victims from further harm from the potentially sensitive dialogue that is likely to occur in sentencing hearings is a consideration when permission is sought by the media.
What about the public interest?
It must be noted that the broadcast of the sentencing hearing is unlikely to have an enormous impact on the concept of the ‘public interest’ either way. This is because even if permission to broadcast proceedings is denied, the media is still able to attend and report on the outcome.
Indeed, the court will remain open to the public in most cases. This means that any person can attend, witness and report about the proceedings.
However, it must be said that there are exceptions to the general rule that courts are ‘open to the public’, and these include some cases of a sexual nature, those which involve children and others where suppression orders have been made.
The provisions for broadcasting court proceedings are relatively new in Australia, and it remains to be seen how often, and in what circumstances, sentencing proceedings will be televised in the future.