Well, what do you know? Just three or four hours after I published my glowing review of Underbelly and the suppression order against the show has been lifted. Was it me?
Actually, has it lifted? Here are the terms of the order:
1. That General Television Corporation Pty Ltd and/or any related corporate entity be prohibited from publishing the television series ‘Underbelly’ or any part thereof in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].
2. That General Television Corporation Pty Ltd and/or any related corporate entity be prohibited from publishing on the internet in Victoria the ‘Family Tree website – inside the Underbelly, which looks at the evolving relationships between the key characters’ until after the trial and verdict in the matter of R v [A].
We’ve had the verdict, but has the trial finished? There’s still the sentencing to go. Do we still need to suppress Underbelly so that King J’s sentencing is untainted by all the prejudicial colour and drama? But, wait a second, she watched nearly the whole thing back in February! Surely, she can’t sentence Goussis, which involves so many difficult factual findings. How will she separate fact from fiction?
On a Charter note, observe that neither the interpretation mandate nor the conduct mandate apply to suppression orders. Any ambiguity in the meaning of the term ‘completion of the trial’ will need to be resolved without reference to human rights. Of course, that’s how the orders were reached in the first place.
And where to after the Goussis verdict? Next stop, his appeal. What’s to bet that one of his appeal grounds is the prejudice created by the insanely heightened interest in Underbelly (complete with readily accessible floods of bootlegs and downloadable versions – who are you really burning, you fiends?) caused by… King J’s suppression order. Any chance Goussis had of scoring a jury who were compeltely ignorant of the gangland wars was totally wrecked by the media storm surrounding KIng J’s suppression order and the subsequent appeal. Fair trial, my arse.
And, wait, there’s more. One of King J’s major gripes with Channel Nine was their insistence of showing Underbelly at the start of the 2008 ratings year, rather than fitting in with the trial calendar:
I have to balance the importance of a criminal trial proceeding in the fairest way that is possible in the circumstances, with Channel 9’s interests in having this series aired. It is not a situation that I have to, in my view, balance the public right to know. This is not the reporting of an event, this is a television series made for entertainment. Channel 9’s interests are commercial, in that they seek to air this at an appropriate ratings period, to ensure that they receive good ratings. From those good ratings they would hope to receive good advertising revenue. In my view it is far more important that the criminal justice process works, than that a channel make a profit.
What’s the harm to Victorians or anyone else if there’s a couple of months delay? But, of course, Nine, King J and everyone else knew that this was rubbish. The potential delay is much longer, because there are more trials in the offing, including Mokbel’s trial for the same murder that Evan Goussis was convicted of. So, we’ll be having more suppression order cases. Possibly many more.
The difference this time, hopefully, is that there’ll be no rush in the Supreme Court or the Court of Appeal. In particular, Channel Nine won’t be forced to drop its Charter argument because the Court of Appeal churlishly refused to apply the discretionary exceptions to s78B. Instead, there’ll be plenty of time to sort out the mysteries of Charter ss. 6(1), 6(2)(b), 49(2) and even some provisions of substance. And there’ll be time for the courts to think twice about things like:
- banning thirteen hours of TV because of 15 minutes of coverage of one of the 30 odd deaths
- banning publication not just in Melbourne but in Mildura, Wodonga, etc.
- banning publication well before the trial
- scaring off all Victorians from watching Underbelly DVDs privately even after the jury has been sworn
- dismissing out of hand the North American approach to suppression, in favour of a common law approach that seems to predate the printing press, let alone the internet
At the very least, three more judges of the Court of Appeal will get to weigh in. I can’t help but wonder what the former head of Liberty Victoria thought of his colleagues’ work in the last couple of months.