Photos and Recordings in Court

In NSW, it is an offence to record sounds or images in Court premises. This captures photos, videos and audio recordings. There are certain exceptions for lawyers, journalists or where the recording is permitted by a judicial officer. 

The maximum penalty is 200 penalty units and/or imprisonment for 12 months (or both). Persons who make recordings in Court could also be charged with contempt of Court. 

What is the Offence of Using a Recording Device in Court?

The offence of Using a Recording Device in Court Premises is contained in section 9 of the Court Security Act 2005 which states:

• A person must not use a recording device to record sound or images (or both) in court premises.

The above offence does not apply to:

(a)  the use of a recording device that has been expressly permitted by a judicial officer,

(b)  the use by a lawyer of a recording device to record the lawyer’s own voice in a part of court premises other than a room where a court is sitting,

(c)  the use of a recording device by a person for the purpose of transcribing court proceedings for the court,

(d)  the use of a recording device by a journalist while exercising a right referred to in section 6 (2),

(e)  the use of such recording devices in such other kinds of circumstances as may be prescribed by the regulations.

“Court” means all Courts in NSW. “Court premises” includes a forecourt, courtyard, yard, car park, toilet, hall, corridor, entrance and exit, as well as any part of the premises or place used for Court operations that are also used for other purposes.

“Recording device” means any device that can record images or sound or both, including a:

• camera, including a video camera;
• a mobile phone;
• a tape recorder or digital audio recorder;
• a portable document scanner.

The following acts may constitute an offence of Using a Recording Device in Court Premises:

• Taking a selfie while you’re inside a Court house to post it online;
• Filming your friends Court proceeding; or
• Making an audio recording of the proceedings so you can listen to them later. 

What Must Be Proven?

For a person to be found guilty of Using a Recording Device in Court Premises the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You used a recording device;
• You recorded sound, images or both; and
• You were in a Court premises.

Which Court Will Hear the Matter?

This offence is a Summary Offence, which means the matter will be finalised in the Local Court. 

Possible Defences

The following defences may be available for a charge of Using a Recording Device in Court Premises:

• You didn’t use a recording device;
• You didn’t record sound, images or both;
• You were not in a Court premises;
• That one of the exceptions applies to you; or
• To argue necessity or duress.

Common Questions

Will I receive a criminal conviction?

Not necessarily. Because of the relatively low maximum penalty, a non-conviction is a viable outcome – particularly if the person has no or limited criminal history. However, convictions are nevertheless regularly recorded. If a person was to plead not guilty and was acquitted, they would not receive a conviction. 

In NSW, a Court can impose any of the following penalties for this charge:

• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what a person does for a living and any need to travel. It is important to get legal advice if you think an offence like this would impact your future. 

Will I go to Gaol for Using a Recording Device in Court?

It’s possible, but unlikely. Given the low maximum penalty and the general type of behaviour that results in an offence of this kind, gaol is unlikely but has been imposed previously. What sentence a person will receive depends on many factors including whether they plead or are found guilty, the circumstances of the offence itself, any prior criminal history and the person’s own circumstances. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.