Underbelly: The Director’s Cut

The judgment in X v General Television Corporation Pty Ltd [2008] VSC 344 is now on Austlii. However, just like the version of Underbelly that Victorians have at last been able to watch, it’s a trimmed down ‘authorised for publication’ version with annoying breaks:

4 [Paragraphs 4 to 12 inclusive have been deleted from this version.]

18 [Paragraphs 18 to 23 inclusive have been deleted from this version.]

Alas, we can’t go interstate to find out what’s in the mystery paragraphs. Although, at least that means that there’s some point to all the censorship, unlike the weird pixellation of Underbelly’s Victorian edition. Or is there? Tthe sole purpose of the trimming is so that we don’t find out who X is. The judgment does reveal that X is facing ‘criminal trials’ (plural) and that one such trial is for the ‘alleged murder of Lewis Moran’. (I dunno if ‘alleged’ is the right word. After all, Evan Goussis is currently serving a sentence for that very murder. Or maybe he’s been secretly acquitted?)  Vickery also excludes half of Victoria’s population by referring to ‘his murder charge’. So, not Zarah Garde-Wilson, I guess. Surely, when that trial comes about, the jury are going to work out the mystery? Or are there dozens more folks lined up to go on trial for killing poor old Lewis?

Alas, what is also left secret is exactly why Justice Peter Vickery ordered that the first five episodes of Underbelly could be shown, but not the sixth. He does reveal that what Victorians have got to see is the Director’s cut:

A “Victorian” edited version of the program has been produced to satisfy concerns expressed by the Jeremy Rapke QC, Victorian Director of Public Prosecutions. The Victorian version is proposed to consist of an edited version of episodes 1-6 only.

So, Rapke – he of the media release that threatened prosecution for anyone who showed any part of Underbelly whatsoever – has indeed decided that over a third of the series is AOK. Perhaps what was prejudicial to Evan Goussis isn’t prejudicial to X. Or maybe Rapke is learning on the job as Victoria’s chief censor.

But Vickery had a problem with episode 6:

I find that the broadcasting of episode 6 of the television series Underbelly in Victoria, prior to the trial of X on his murder charge in relation to the death of Lewis Moran would constitute a contempt of court. In my opinion, the making of the necessary prohibition order is necessary to ensure a fair trial for the accused X in relation to this charge. As the Court of Appeal said in General Television Corporation Pty Ltd v Director of Public Prosecutions and Ors: The test for liability for sub judice contempt is whether, as a matter of practical reality, the publication is shown to have a tendency to prejudice or embarrass particular legal proceedings. I find that there is a real and definite tendency for episode 6 of the edited Victorian series to prejudice the trial of X and that a broadcast on Channel 9 in Victoria prior to X’s trial in relation to the death of Lewis Moran would have this effect.

Of course, we can’t know what is wrong with episode 6 (unless we buy the DVD from interstate.) But isn’t it a little weird how the very case that Vickery quoted here had already ruled that the first three episodes couldn’t be shown at all prior to Goussis’s trial:

The first matter to be considered is whether, as is submitted by the applicant, no prejudice could arise by reason of the broadcast of episodes 1 to 3 of Underbelly. Episode 1 is entitled ‘The Black Prince’ and involves matters relating to one Alphonse Gangitano. It is set during the year 1995. The period of time to which the episode refers is thus temporally separate from the matters connected to the trial. However, B and two of his sons are named and represented by actors in episode 1, as is D. This episode commences to describe the relationships which each of those parties has to each other and to other persons. Those relationships are portrayed as being relevant to the events which lead in due course to the death of B. Likewise in episode 2, B and members of his family and D are named and portrayed by actors. F is represented in the program by an actor but not named and his face is pixelated. Similarly, episode 3 is devoted principally to the family of B and their association with other alleged members of the ‘underworld’. It also refers in some detail to the alleged association between D and F.

Clearly the relationships between the deceased and members of his family and D and F, and the criminal activities in which they are portrayed engaging in as portrayed in episodes 1 to 3 are relevant to the manner in which the prosecution puts its case against A. In our view, taking into account the proximity of the trial and that fact, the judge rightly considered that the dramatic portrayal of matters of mixed fact and fiction which directly relates to the trial of A was a matter of most serious concern. In this regard it must be remembered that it was the trial judge who was to be burdened with the obligation of providing appropriate directions to both a prospective jury panel and to any jury finally selected. In our view her discretion in relation to episodes 1 to 3, as with her discretion in relation to the other episodes, did not miscarry.

I wonder if Victorian edition that Channel Nine offered then is all that different from the Rapke edition? Is the difference in orders really about proximity to the trial? Or is the truth that there are some varying views with the Supreme Court about when it’s appropriate to success? And is that level of variance acceptable? Or perhaps the difference this time is that Vickery actually considered the Charter. Again, there’s a curious variance with the Court of Appeal’s Underbelly judgment, where Warren CJ & Vincent & Kellam JJ thought that it was ‘highly unlikely’ that Channel Nine could rely on the Charter. Interestingly, the Attorney-General didn’t intervene this time armed with a constitutional challenge against his own statute and demanding s78B notices. But maybe no Charter s. 35 notices were sent either. Oops.

Vickery declares that X’s common law right to a fair trial is now ‘reinforced’ by Charter s. 24 (all of it) and is ‘reflected’ in Article 14 of the ICCPR. He also said that, in suppressing episode 6, he is ‘mindful’ that free expression is ‘entrenched’ by Charter s. 15(2), again ‘reflected’ in Article 19(2) of the ICCPR. However, he noted the ‘important caveat’ in Charter s. 15(3) and also found Charter s. 7(2) ‘instructive’. No mention, however, of what legal effect these provisions have: interpretation of the Court’s suppression power?; something to do with Charter s. 38?; Charter s6(2)(b)? Who knows? 

In this case, Vickery declared that he ‘adopts’ the NZ approach to suppression (just as the Court of Appeal said they would in the unlikely event that the Charter had any role to play in a media suppression case). The NZ approach holds that when expression and fair hearing rights clash, the former must be ‘temporarily suspended (with temporary in this case being: until all the gangland prosecutions and appeals are over.) Unfortunately, there’s no discussion of the alternative Canadian view, which adds two additional requirements: that suppression will actually have the desired effect and that it is proportionate to what is gained. Ridiculous requirements, of course. Victoria has a proud recent tradition of suppression that has no (or negative effects) and is out of all proportion with what is gained.

On the topic of effectiveness, Vickery does feel the need to explain why suppressing Underbelly makes sense even though the ‘book(s)’ of the series are available prominently in every bookshop in Melbourne. It turns out that it’s not that jurors are presumed to be illiterate, but rather that they simply go stupid in front of the box:

No other source of information, including newspapers, books, radio and the internet, comes close to the pervasive power of television. Television combines the compelling images, music and dramatic narrative of the movies, with the personal immediacy and convenience of access in the loungeroom. A book, newspaper and even internet text have to be read in order to gain the information contained in these sources: it has to be processed by the mind before the information can be assimilated. On the other hand, what is seen on television enters directly into the mind of the audience with little opportunity for analysis.

Obviously not a follower of Lost. Now, what’s the first thing that Victorians will do once episode 5, the Victorian ‘season finale’, screens here? They’ll go straight to google to find out what happened in episode 6. And that’s fine, says Vickery, because then they’ll analyse what they read, whereas if they download the thing, they won’t. Alas, his citations of empirical research on this ‘TV vs analysis’ phenomenon seem to have all been suppressed from the authorised version of his judgment. 

And proportionality?:

The Victorian public has a very limited public interest in receiving the information and the ideas imparted by episode 6 of Underbelly. As was conceded on behalf of General Television Corporation, the principal purpose of the series is that of entertainment…. [I]n this case it is far more important for the fair trial of the accused X to be placed beyond the real risk of irreparable compromise than it is for the Victorian public to be entertained by the episode in the series which I intend to prohibit.

Nice that he went beyond King J’s ‘no profits for Channel Nine’ analysis. But it’s a long way short of jurisdictions where free speech doesn’t come and go depending on what value some judge places on its content.

To Vickery’s considerable credit, he does quote this pertinent observation from Victoria’s Jordan CJ:

It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.

Vickery declares that Underbelly is ‘a long way from’ that. Maybe. But, having watched the whole series (legally, I’d add), I think that the Gangland Wars, and Victoria Police’s response to it, are matters that demand considerable public scrutiny. Entertaining television (like Blue Murder on Sydney’s criminal gangs and their relationship with its police) can generate and stimulate public debate on such matters much more effectively than some dull episode of Four Corners. And proximity to the events is often key. The price of Victoria’s suppression regime isn’t just that the public loses focus on the Gangland Wars, but that the media will be similarly scared off doing documentaries on major issues like the trials of Joseph Thomas and Benbrika’s mob. 

All up, though, a much better judgment than the blathering nonsense that the Court of Appeal produced in its Underbelly case. Perhaps it shows the benefits of having some consideration of the Charter, no matter how vague.

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