Well, I’ve now seen the first twelve episodes. I watched them over a week, whereas Justice King had to do the same in one night. (For some reason, she skipped episode 7, a fascinating episode focusing on the various women in the series.) Crucially, last night I watched episode 12, which is the one that features the murder of Lewis Moran. The trial of Evan Goussis for that murder, presently in its endgame in the Supreme Court of Victoria, is of course the reason why King J suppressed the show:
In my view it is far more important that the criminal justice process works, than that a channel make a profit. Accordingly, I am going to suppress the publication of the series “Underbelly” in Victoria, all 13 episodes. I further suppress in Victoria any publication on the Internet of the series together with any publication on the Internet of the part of the site that shows the history, the inter-relationship of the individuals between each other, the cast of characters and their associations.
Justice King’s order didn’t just prevent any prejudice to criminal justice but also stopped anyone in Victoria from judging the series (and King J’s order) for themselves. The Court of Appeal, while upholding King J’s findings, narrowed the order she made:
In our view that order was too wide. It purported to bind every person in Victoria.Whilst we consider it is clear that a suppression order made pursuant to the power granted under s 18 of the Supreme Court Act, and indeed other orders made in the interests of justice pursuant to the inherent power of the Court may be expressed in very wide terms, it was not necessary for order 1 to be as wide as that finally drafted. In our view an order made against the applicant not to publish the program Underbelly in Victoria until after the completion of the trial was all that was necessary. Clearly, however, any person who with knowledge of the order sought deliberately to frustrate the effect of the order could be liable for a contempt of court.
This narrowing, combined with Channel Nine’s decision to make DVDs of the series available for sale outside of Victoria, therefore allows Victorians – at least those who are up for importing the DVDs from interstate – the opportunity to judge for themselves.
The only constraint on us is that we don’t frustrate the trial. Of course, the Victorian Court of Appeal didn’t bother to spell out what would be obvious to anyone with legal training: that once the trial began, the only people who cannot safely watch the show are the twelve jurors presently deliberating on Goussis’s verdict. Certainly, people like me who are (alas) ineligible for jury service have no plausible constraints on that aspect of their freedom of expression. But now that I’ve watched it – and, therefore, according to our learned judges, am incapable of mulling over Goussis’s guilt without prejudice – I have to be careful about not infecting those same jurors with the same dreaded Underbelly-transmitted disease, if they so happen to read this blog. Oh the burden of justice.
So, let me do my civic duty: Goussis jurors, stop reading this blog. Now! I mean it. Shouldn’t you be deliberating anyway? Naughty juror. Out yourself to Justice King immediately.
For the rest of you, the secret of Underbelly:
Underbelly rocks. It is as good television as television can get. It’s a major event in Australian culture: a clever, intelligent and risky drama series that is (surely) the most successful piece of non-fiction ever to hit our television screens. And it emerged from Channel Nine, a brief bright light in the rubbish that the Packer juggernaut has spewed out in recent years. It brings together many of the major names of Australian (small screen) acting. And, I assume, many of the little known greats of screenwriting, directing, cinematography and editing. Indeed, the Court of Appeal said it all:
It is clear to us that the principal purpose of the series is that of entertainment. This it does by the graphic portrayal of violence and the salacious behaviour of many of those portrayed. The entertainment value of the program is enhanced by the music used as background and sometimes by humorous narrative.
Ah, the entertainment. That it certainly is. And, it seems, that was its greatest sin as far as the courts are concerned. According to them, freedom of expression is most prized when it is sombre, reserved and dull, just like the snails-pace interactions between the bar and bench. Underbelly doesn’t feature narrators puffing on pipes (or though a lot of narration is done while people snort various things.) It doesn’t contain earnest interviews (although Derryn Hinch gets to ask Carl Williams some pointed questions.) It’s fast. It’s lively. And it’s fun.
And it is full of violence and salaciousness, just like the Gangland Wars themselves. Which is precisely why most of the last men standing are either in prison or on remand. If all the Carlton and Williams Crews did was rap insults at eachother, or just stuck to selling drugs to the city’s nightclubbers, then neither the public, the police nor the courts would have cared less about them. Underbelly doesn’t hide the graphic nature of the gangsters’ behaviour, as that would conceal not only its horror but also its stupidity. It’s one thing to see one idiot misread another’s behaviour. It’s another to see that lead to a clumsy but viscious fist-fight in front of bemused bystanders. It’s one thing to see a moron descend into paranoia and start waiving his ill-earned cash around. It’s another to see the direct consequence: Jason Moran’s blood spraying onto his eerily silent kids’ faces. And it’s one thing to read about gangsters in the paper and another to see their families, their personalities and their insecurities. Indeed, the constant raunch in the show, apart from achieving the obvious aim of drawing in a particular (broad) demographic, is also the clearest reminder of the gangsters’ humanity, both their isolation – the pathetic groping of strippers at various bars – and their need for others – the occassionally surprising tender sex, often literally, and poignantly, interrupted while they stand up or pop out to meet their doom. In Underbelly, if you tell someone you love them, then both of you had better put on bullet-proof vests. Quickly.
Perhaps best of all, the music and the humour. Maybe Victoria’s judges have learnt to deal with unremitting violence and nastiness by reciting their oath or something. But normal people can only take so much, without something to make life – and its darker sides – more livable. Victorians, at least, have been able to get the music of Underbelly, which somehow slipped past King J’s radar. But they’ve missed out on some great comedy, mainly via the brilliant portrayal of Roberta Williams, one of the major comic creations of Australian television (and – who knows? – nature.) You find yourself wanting to race past the blood and get to the next time Roberta matter-of-factly volunteers to bite an enemy of her husband’s balls off.
But the Court of Appeal made another, more significant, judgment-call about Underbelly:
On any view the weight of Underbelly as a matter of public interest in such an exercise must be seen as being extremely limited. As for the somewhat specious submission that the program imparts information to the public as to the role of police, it is difficult to see that Underbelly provides any information to the public significantly beyond that of any dramatized police television program. In our view there is nothing in this ground.
And in my view there’s nothing to the Court of Appeal’s call on this. Underbelly is educational. Yes, of course it’s educational. The gangland wars are a major part of Victoria’s recent history, where thirty-odd lives were lost, countless other lives were ruined and Victoria’s police were humbled and transformed (though it’s too early to tell if it’s for the better.) The series tells us – more poignantly than Blue Heelers or the Bill, or A Current Affair or an academic journal could – about the effects of drugs, of vice, of loan sharking, and of the justice system itself. And it does so, not years down the track when people have forgotten the key names, and even the key scenes but when they are fresh in our memory and the ramifications are still playing out in the courts and in politics. In other words, at a time when a series like this could keep the public involved in a major question about Melbourne society and its institutions.
And there’s this call by the appeal judges:
Had a jury been empanelled the trial would have commenced with the prosecution case effectively being supported every Wednesday evening by the weekly ‘docu-drama’. The fact that the deceased, his family and the alleged ‘employers’ of X are depicted so graphically in the series would render it difficult for any juror to separate fact from fiction. Certainly what was seen on television by any juror would contemporaneously put colour and drama into the evidence being led by the prosecution. It would also introduce a mass of inadmissible material about B, D and F and their relationships with each other and others. The police who were involved in the investigation of the ‘gangland killings’ are portrayed as being heroic figures in the series. No doubt police will give evidence in the trial of A. The effect of the television series is to enhance their integrity and professionalism. Likewise the alleged victim of A is given a human face in the television series. The contemporaneous effect of these matters upon a jury cannot be measured.
Well, I agree that those effects could not be measured. That’s because they are too trivial to be measured. Sure, Underbelly was refreshingly colourful. No dull noir tones here. And, yes, it wasn’t entirely factual. Ultra-modern trams ran by in 1995. North Melbourne Station’s redevelopment was in full swing in 2000. Eureka Tower was finished in 2004. They got the licence plates and phones right, just like Lost. But they’ll need to work a bit harder on such things in the prequel or we’ll be seeing meetings between 1960s gangsters at Transport at Federation Square. Doubtless, some of the murder sequences and chronologies were fudged to suit the medium. And of course a lot of the conversations weren’t real (though I hope some of those lines from Roberta and Carl and Zarah and the gang are factual.) As for ehnancing the integrity of the police, well I haven’t seen the final episode – nor would the jury – but neither Victoria Police’s integrity nor its professionalism came up roses. Cops were corrupt, perps were harassed and calls were bungled; and the bosses were obsessed with management-speak, the plebs were concerned about their overtime and careers, and the main guy was never quite humanised by his pointless love interest, nor was the main gal quite convincing in her role as concerned about the kids. None came across as as human as the victims, but since when is the Court of Appeal concerned that jurors recognise that murder is not just a breach of the Crimes Act but an abuse of an individual and their family?
The biggest eye-opener to me last night was the breathtakingly short – but sharp – treatment given to the Lewis Moran killing, which happens off-screen (although we are later shown similar images to the ones the jury got to see from the CCTV.) We never see who did it and the almost exclusive focus is on Goussis’s alleged buddy, with his ying-yang tatoo, not Goussis himself. None of the (direct) killers is named and even one of the alleged indirect ones – mysteriously called F in the Underbelly judgment – is a no-show for the entire episode. Must have been off on a sunny holiday somewhere. (The occasional non-naming of characters is one of the easter eggs of the show, courtesy of the Supreme Court. You just know when someone points a finger at ‘that guy’ or ‘that lunatic’, somehow avoiding saying his name on repeated occassions or when some bearded guy keeps turning up in scene after scene at Carl’s villa without someone saying ‘Hi Bob’, then (a) they don’t die; and (b) they’ll get bundled off by the police soon enough. For some reason, the Supreme Court is even keeping the name of the guy who shot Jason Moran in front of his kids secret. After all, no Melbournite would remember a few years back, would they?)
Now, doubtless, there’s always a risk in showing a long story that involves any character who’s awaiting trial. The law of evidence likes to focus on the crime, not the person, so you have to be careful about a show that goes beyond single events. Speaking hypothetically, if it so happens that a particular individual was shown as connected to two alleged crimes, then you’d have to make sure that the jury didn’t see that (and, of course, cross your fingers that the jury has never heard of google.) Of course, on Underbelly, you’d have to watching very closely to see such links when they involve bit players like Goussis. But if a character facing trial only appears in one episode (as Goussis does), then the most you’d have to do is to make a few cuts to that episode. There was no need to make this judgment about Episode 12 though – and any of the characters or crimes in it – because Channel Nine said it wouldn’t show that episode.
Alas, that wasn’t enough for King J or the Court of Appeal:
The series explains, to a very large degree, the reason why [B] was ultimately murdered. That is really the subject of the trial of [A]. In this case [X] is giving evidence on behalf of the Crown. He is an accomplice and will have attached to that evidence, the very strong accomplice warnings that attach to such evidence. This whole series has an unfortunate aspect to it in that it tends to corroborate the version that is given by [X]. The victim [B] is also to a large degree made very human by this series and is shown as a grieving parent. [B] appears in episode 1 and continues to appear throughout. The murder occurs in episode 12. Episodes 10 and 11 prior to the murder have a significant impact in terms of [X] and [A] and their involvement with [D] and [F] which is of course exactly what [X] will be telling a jury, that is how he was contracted to become involved in this murder. Channel 9 have offered to not show episode 12 until after the trial of [A] is complete. It is unfortunate that I do not think that would be sufficient or even close to sufficient to prevent strong prejudice flowing to [A] in respect of his forthcoming trial.
No. Remember that A (Goussis) is only in episode 12. The background in episodes 10 and 11 – and for that matter episodes 1-9 – is nothing more than the general claim that there was a big dispute between the Carlton Crew (including B) and the Williams Crew (including D), with each suspecting the other (not without cause) for targeting the lives of themselves and their acquaintances. That’s it. The idea that that that piece of information is either unknown to the jury, irrelevant to the case or prejudicial to anyone whatsoever is simply nuts. I can’t believe that appellate judges could believe otherwise.
Moreover, as the news coverage of the trial has made clear, Goussis’s primary defence is alibi. He isn’t saying that Lewis accidentally shot himself with a gun, or was an innocent bystander in an unrelated shooting, or anything else that would distance Lewis’s death from the gangland wars. His claim is just that it wasn’t him in the balaclava on the CCTV and that those who claim otherwise are lying or wrong. That bog-standard defence – which the Supreme Court would have got word of at least 14 days before the trial started, but which didn’t prompt any change of heart on the suppression order – is not even slightly touched on in any of Underbelly, much less the eleven episodes before Goussis’s character made his brief appearance. The claim of prejudice from the ‘background’ informaton in Unberbelly was a boondoggle.
So, in short, Underbelly is the epitome of:
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.
lawful restrictions reasonably necessary– (a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality.
such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom…
Of course, I’ve long suspected exactly that. To avoid either my or the courts’ pre-judgment, import the DVDs and judge for yourself. (Or, if the courts have their inevitable way, wait two or three years until after Mokbel’s trial.)
Whew! Finished before Goussis’s jury! [EDIT: Just!]