Evidence In 140 Characters Or Less
By Bernard LaganAugust 30, 2012
Not so long ago, sketch artists and reporters’ notebooks were the only means to convey courtroom proceedings. Along with much of the old world, justice is struggling to keep up with a smartphone-toting social-media here and now.
If ever there was a murder trial that rivets barristers' chambers from Phillip Street in Sydney to Perth's St Georges Terrace, it would be that of the former Western Australian Director of Public Prosecutions lawyer Lloyd Rayney — accused of killing his wife, Corryn, a lawyer and senior Supreme Court registrar.
Now in its seventh week, the trial astounds daily. It draws its cast from the gilded interior of the Western Australian justice system. Friends and colleagues from the Bar are now icy witnesses. The unravelling insides of a marriage — that of the vivacious Supreme Court Registrar to the lawyer in a love-at-first-sight tale — are searingly exposed.
The accused was an ambitious and tenacious prosecutor whose bigger cases included his prosecution of the great man of letters, Robert Hughes, after Hughes crashed in his car while returning from a fishing trip in Western Australia. Lloyd Rayney went on to sue Hughes, who nearly died in the crash, for defamation, after Hughes railed at his treatment by the Western Australian justice system. (That matter was settled out of court.)
So great is the media interest that court authorities have set up a room for reporters, away from the court, that offers a live electronic feed of the trial. Reporters are able to tweet, instantaneously, evidence and events as they unfold in the courtroom. On offer at Twitter (#rayneytrial) are instant scraps of evidence from the trial, or direct links to evidence — including a tape of a phone call between Lloyd Rayney and a technician he allegedly paid to bug his home telephone while his wife was still alive.
Of course, the trial has also captivated the internet's darker regions, where the trial judge, prosecutors and defence are routinely savaged and defamed in terms that would result in swift retribution had they appeared in mainstream media.
You might call it trial by Twitter.
Welcome to the technological frontline, then, as an ancient judicial system, forged in centuries of practice and precedent, rubs up against a bursting, grasping and still ill-formed social media. Suddenly there are new dilemmas about how a closeted, cautious judicial system deals with anyone with an iPhone and a will to write. The bench must even decide, perhaps, what defines a journalist within this new world. Will courts allow coverage of trials by Twitter? What about live streaming? And what to do with those who describe themselves as live bloggers?
The challenges posed by social media have cascaded down through judicial systems everywhere. Australia's responses — so far — range from an extremely tolerant social-media policy within the New South Wales District and Supreme Courts — one that permits reporters to instantaneously tweet proceedings — to a policy that will come into effect on September 3 in the Victorian judicial system, which bans instantaneous tweeting and live blogging, unless permission is expressly given.
The fact that there are widely varying policies within Australia's two largest judicial systems is perhaps not so surprising; it merely reflects the diversity of views within the law about the role of social media.
The Sydney barrister Mark Polden is a defamation specialist who has given much thought to the emerging new platforms. In his view there is a good argument that the use of Twitter in courts should be encouraged because, unlike the televising or filming of court proceedings, Twitter is unobtrusive and uninfluenced by proprietorial agendas, a reporting medium "which flows directly from the right of members of the public to be present in court and to report to others what they see and hear."
But Polden also is acutely aware of Twitter's limitations as a court reporting medium. Whilst Twitter's 140-character limit is capable of providing and promoting what Polden terms "headline coverage", a single tweet also is unlikely to stand up as a fair, protected report of court proceedings in the event of a challenge to its author.
He even sees a risk that Twitter will lead to a more closed court system, if non-journalists are allowed to provide tweeted reports.
"It may lead to more applications for closed courts, for example in extortion cases or those involving police informers both — of which are presently heard in open court, subject to the making of non-publication or suppression orders which allow the proceedings to be reported with relatively minor changes and by which journalists and the media generally abide," says Polden.
"Whether the courts have sufficient confidence that amateur court tweeters are aware of the rules, are prepared to abide by them, or can be identified if they fail to do so, remains to be seen," says Polden.
Even for experienced, professional court reporters such as The Sydney Morning Herald's Louise Hall, social-media platforms — especially Twitter — must be treated with great caution. Hall frequently tweets courtroom verdicts for which there is a wide audience but she says she is extremely wary of tweeting evidence as it unfolds in court despite the liberal rules in NSW which allow her to. Her greatest concern, she says, is that non-publication or suppression orders will be made after evidence has been given. While tweets can be deleted, they will have been published.
Hall also likes to know the Herald's lawyers have cast their eyes over her more demanding reports prior to publication.
"Obviously the lawyers cannot see your tweets before you send them off," she says.
Mark Pearson is a legal academic and professor of journalism at Bond University. This year he released his safety guide book for bloggers and tweeters, Blogging and Tweeting Without Getting Sued; A guide to the law for anyone writing online.
He is now leading a research project that is designing a social-media policy for adoption by Australia's various courts. Pearson is fond of pointing out the enormity of the consequences of getting things wrong on social media; every tweet or blog may be subject to the laws of more than 200 different jurisdictions.
He believes that anything that enhances the ancient principles of open justice should be welcomed and that there is no better tool to improve social justice than social media.
But he cautions: "The fact is we have an ancient judicial system that is quite conservative in its uptake of new technologies. Basically they are 19th-century procedures and practices that evolved for very good reason but don't necessarily suit social media."
Examples of court procedures and rules that risk compromise by social media, says Pearson, are the integrity of the jury process, the quarantining of witnesses from each other and the testing of evidence for admissibility. Live tweeting, he says, has the potential to prejudice any of those processes.
Pearson believes that courts will in future need to adopt specific social-media policies that accord with the kind of cases they are deciding. Some, such as the Family Court, will need to remain relatively secretive and closed. But for lower courts, there will be real advantages in the use of social media to demonstrate that minor crimes are being dealt with.
It is likely that Australian jurisdictions will look abroad when considering what social-media policies to adopt for courtrooms. They will find in Britain, at least, the unexpectedly open policy announced some 18 months ago by the Lord Chief Justice, Igor Judge, who proclaimed: "Twitter as much as you wish."
Not only do the guidelines brought down by the Chief Justice of England and Wales allow accredited court reporters to tweet from the courts, they also allow members of the public to tweet from the courts — provided they first obtain permission.
In his guidance, Lord Judge said: "The normal, indeed almost invariable, rule has been that mobile phones must be turned off in court. There is however no statutory prohibition on the use of live text-based communications in open court."
By contrast, the policy now applying in the Victorian Magistrates Court states: "Upon entering a Magistrates Court Victoria courtroom you must not use any electronic device where such use constitutes instantaneous publication (for example social media, such as Twitter or live blogging)."
This policy may be varied upon application to individual magistrates.
Yet in New South Wales journalists are allowed to take their mobile phones or "personal digital assistants" into court and use them for "electronic note-taking, text messaging or emailing".
Nowhere does the policy mention Twitter or Facebook. It was drawn up four years ago by the then Chief Justice, James Spigelman — at a time when smart phones had barely arrived and when Twitter was just about to catching on.
Intended — or not — the Spigelman policy has become the country's most liberal and Twitter thrives in NSW courtrooms.