Australian Lefty on Politics, Governance, Science and Info Management

Biased court drawings and re-enactments: how far is too far?

Posted by Dave Bath on 2007-07-21

Legal Eagle’s Missing Link comment encourages me to use the probable misrepresentation of Haneef by the Murdoch press court drawings as a stepping-stone to wider issues.  (The post she comments on is a crosspost of this.)

I’ve realized that these are reports from a court, and wonder whether a court system has an interest and ability to take action as it would to a misrepresentation of words.

Let me make an analogy to misrepresentation using another media – the court re-enactment on a news of current affairs program (not a drama).

What would happen if the re-enactment gave a markedly different impression to viewers compared to the actual court events?

Imagine an actor playing a witness or an accused that, while faithfully using the words of the transcript, put in pregnant pauses, furtive eye movements and other body language suggesting dishonesty or guilt.

Imagine an actor playing a judge, using expression of voice or body giving a strong, counterfactual impression of irony, sarcasm or anger.

How far would a re-enactment have to stray from reality, how misleading to viewers, before it becomes (or should become) actionable by police or the court system – whether within existing law or in our concepts of natural justice and the need for due respect of the judicial process?

To my mind, any misrepresentation becomes much more of a problem if the re-enactment uses skilled vocal impersonators and excellent makeup that creates a greater impression of verisimilitude – because the the reasonable and heightened expectation viewers/listeners would have in the accuracy of the re-enactment as a whole.

Now, go back and look at the court drawings from an earlier post.  The drawings published by the ABC and The Age have colors, are created with "broad strokes", lack high-definition detail – and obviously make no claim to photo-realism.

Look at the detail of rendering in the drawings from the Murdoch press.  No "broad strokes" here but a high level of detail that shows individual hairs and encourages an estimation of the length of the stubble on the cheeks above the main part of the beard.

This intentional impression of accuracy through the detailed representation, yet marked difference from the physiognomy of Haneef from other available images, the degree to which those impressions (by resembling a neanderthal associated by most people with primitive and brutish behaviour) seems, to me at least, as bad as consistently biased and purposeful misrepresentations of the body language and speech of a witness or judge when the makeup and vocal impersonations of an actor are used in a re-enactment shown to the public for the purposes of reportage.

How far do non-textual reports of proceedings of courts (or perhaps parliaments) go, especially if they seemed biased, before action should be taken, and what redress is available under Australian law.

Should we expect a reasonable degree of competence from court artists or perhaps some certification?  Should sketches (or re-enactments) be vetted quickly by an officer of the court to confirm they are a "fair representation" of proceedings and unlikely to create strong false impressions because those representations are published?  Should the officer not be able to prevent publication, but merely make an official record of concern and give caution to the prospective publisher?

Can such actions constitute a contempt of court, or merely something like slander or libel?

What are remedial actions?  Exclusion from future proceedings or "sinbinning"?  Fines?  Is it the artist (whether on paper or on video) that should get into trouble, or the publisher?

I don’t know.  I’ve no background in legal particulars, just a unit that covered legal and political philosophy where reading essays by Denning’s gave a little discipline to my thoughts on natural justice and its expression in the law and court determinations.

Can anybody out there with a proper legal background help my thinking here?


15 Responses to “Biased court drawings and re-enactments: how far is too far?”

  1. […] Dave makes another interesting point in a later post – is it legal to present a defendant in a way which is unflattering and may lead members of the […]

  2. Answer is shortly – no, courts don’t get involved in contempt of court proceedings off their own bat unless someone actually starts swearing at the judge or being violent etc.

    However, prosecutors may well institute contempt of court proceedings if they are worried that the prosecution case is likely to be derailed by prejudicial media portrayal. It is actually in the interests of the prosecution for the press to keep its portrayal measured, because then the prosecution doesn’t have to face the problem of the defence alleging that there has been a miscarriage of justice.

    The penalties for contempt of court can be severe – from fines to gaol.

    If you want to read an amusing contempt of court case, read this case, Anissa Pty Ltd v Parsons [1999] VSC 430…Cummins J writes a mean judgment…

  3. Dave Bath said

    LE: Amusing?? Putting it mildly! If producers of a rural-based soap didn’t use it as “inspiration” for an episode, they missed out. (22) is a classic, and it makes me think the defendant had thought the whole lot out in great detail beforehand (e.g by not preventing the order being read).
    Other readers of this blog – I heartily recommend the judgement mentioned by LE.
    (I’m still imagining the helicopter shot drifting down onto Hobbiton at the opening, point(1) “The hills of south of Yarragon are green and shaded. The hourglass of the Latrobe Valley is there at its most slender, nestling between the grandeur of the Great Dividing Range to the north and the finely delineated Strzelecki Ranges to the south. Nine kilometres south of the Princes Highway, off Yarragon South Road, in pastoral serenity stood fifty trees.They had the ill fortune to stand on the property of the defendant -” and then an angry, threatening, bettle-browed smoke-spewingThomas the Tank Engine-type character with “The defendant was not present. But his alter ego was – a bulldozer.”)

  4. I believe it won an award for one of the most amusing judgments in a UK legal magazine.

  5. Dave Bath said

    Is this “most amusing judgements” an annual award of some kind with a web page? If so, do you know the link?

    Is there a similar award just for Australia, or not just for judgements but snippets of transcripts (e.g. the Oz High Court when talking about a definition of terrorism being “religiously motivated violence intimidating sections of the public” – therefore Jesus was terrorist by intimidating moneylenders). Your Paris Hilton and Justice Kirby post was, I reckon, another ripper.

    If we don’t have a “funniest of” award for Australian transcripts anywhere, maybe you or your legal mates might start one? (And I’m sure you have your own faves from past years to build a retrospective list).

  6. Did a quick Google search, but I can’t find it on the web. I think I read about it in a law journal somewhere, but I read so many that who knows which one it was? I note the Brits are generally less likely to have stuff from a while back on the web…

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