The wives and wowsers will be thrilled. Victorians almost certainly won’t be seeing Nine’s docudrama on the gangland wars anytime soon, thanks to a ruling by Justice King banning the broadcast (on TV and on ‘Victorian’ internet sites) until after the trial of an unnamed person in relation to one of the murders. Assuming King J didn’t follow a controversial approach to the Charter that she raised in another gangland trial over a year ago, this couldn’t be a Charter case, both because of the transitional provisions and the exemption of courts’ non-‘administrative functions’ from the conduct mandate.
But if it had been a Charter case, then it wouldn’t have been about “a responsibility to weigh up the interests of the community and commercial interests of Nine”, because corporations don’t have rights under the Charter. While I’m dubious about the exclusion of corporations from the Charter, doing so in this case would certainly have ensured a focus on the real rights interest that balanced the fair trial rights of the defendant: the rights of all Victorians to freedom of expression:
(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether- (a) orally; or (b) in writing; or (c) in print; or (d) by way of art; or (e) in another medium chosen by him or her.
Of course, all Victorians will eventually get to see Underbelly, once the trial is over. But we will miss out on participating in any national discussions about what might be a fairly significant contribution to understanding and debate about a significant part of the State’s recent and continuing history. The people of NSW faced the same disadvantage when they missed out on watching (brilliant) Blue Murder for six years. I’m especially surly as one of the smaller group of Australians who’ll be subject to both of those bans.
What is especially strange about both bans is that they concern topics that have been exhaustively covered in the local media (and, of course, the book on which Underbelly is in Melbourne bookshops, who are advertising it with phrases like ‘Can’t see the series? Read the book’ and ‘Read it before they ban it’.) So, the ban will be imposed on people familiar with the tale, rather than those in the dark. The apparent difficulty with Underbelly is that it is partly fictitious, which could be especially poisonous to the fairness of any trial: “It will be difficult for the viewing public to sift through what is factual material and what is fictional”. I struggle to understand why a straightforward warning about the fictitious nature of the material – both to the TV viewers and to the jurors – won’t accommodate this. Certainly, questions of the efficacy of the ban and of other measures to avoid juror prejudgment should be front and central, as they were when a somewhat similar case was decided by the Canadian Supreme Court (which, in 1994, was presciently worried about the pointlessness of bans in an internet age.)
Justice King’s order is especially galling when you compare it to how courts deal with much more prejudicial material that jurors almost certainly paid attention to. Recently, the NSW Court of Criminal Appeal turned down a fresh appeal by Kathleen Folbigg, convicted of killing her four children, after it learnt that jurors had disobeyed a direct instruction from a judge, sought information about the case online, found out the highly prejudicial (and non-fictitious) information that Folbigg’s father killed her mother in her presence when she was a child and told other jurors about that. Their reason:
The circumstances and motive for the killing are likely to be quite different from those which will exist if a mother has killed her own children. There could be no suggestion that the killing of the appellant’s mother by her father indicated any tendency in the appellant to kill her own children. In my judgment the knowledge obtained by the juror did not lead to a miscarriage of justice.
So, if jurors find out prejudicial, true information despite being told not to, then it’s safe to assume that they have the same ability to assess it through pure logic that judges claim to have. But four million potential jurors and their friends can’t be trusted to handle a fiction.