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Underbelly gutted

Cover Story

Cite as: (2008) 82(7) LIJ, p. 42

The decision to suppress the broadcast of Underbelly in Victoria has generated enormous interest in the ability of the Victorian Supreme Court to suppress publications or broadcasts which might prejudice a criminal trial.

On 26 March 2008, the Court of Appeal of the Supreme Court of Victoria handed down its decision in General Television Corporation Pty Ltd v Director of Public Prosecutions.The Court of Appeal (Court) upheld orders made by Justice Betty King that prevented General Television Corporation Pty Ltd (Nine) from screening the heavily-promoted television series Underbelly in Victoria

By Ben Jellis and Myles Tehan

The Court was required to consider whether a TV drama should be prevented from depicting events which are the subject of a current criminal trial. The question had not been raised before in Victoria, but the Court’s decision to suppress the broadcast of Underbelly was based on settled principles.3
Nonetheless, a number of matters of interest arose including:

  • the extent to which non-parties will be bound by an injunction in the form of a suppression order;
  • the difficulty in reconciling the right to a fair trial with freedom of speech;
  • the question of whether a “docu-drama” could be said to prejudice a jury trial; and
  • the ability of courts to restrict the flow of information in the “digital age”.

Factual and procedural background

Between 1998 and 2006, more than 30 people were killed in Victoria as a result of the “Gangland Wars” – deaths related to various feuds between elements of Melbourne’s organised crime underworld. Some of the murders remain unsolved, others are subject to criminal proceedings in which charges have been laid but which have not yet gone to trial.

The suppression of Underbelly occurred in relation to the trial of a person who could only be referred to as “A” (now known to be Evangelos Goussis). The trial of Mr Goussis was set down for 31 March 2008, causing an overlap with the planned weekly screening of Underbelly beginning on 13 February 2008.

Concerned about the implications for the trial, the DPP sought an order restraining broadcast of the show. In argument, it was noted that both Mr Goussis and the victim Lewis Moran were shown in a number of episodes, and that episode 12 included a depiction of the murder.

After viewing each of the 13 episodes, King J made orders which prohibited “the transmission, publication, broadcasting or exhibiting” of the program in the state of Victoria until after the verdict in the trial. Additionally, orders were made which suppressed the publication of internet material which promoted Underbellyby providing an informative “family tree” of the characters.

Nine appealed on a number of grounds that required the Court to consider:

  • the power of the Supreme Court to restrain publication of information to ensure a fair trial; and
  • the ability of the Supreme Court to make orders directed at non-parties.

The appeal was dismissed, with the Court only making some modification to the scope of the orders made by King J. A discussion of the Court’s reasoning follows.

Power to suppress publication

To suppress Underbelly, the Court relied on its “inherent jurisdiction to ensure a fair trial”. This will be invoked to prevent an apprehended contempt, which occurs where apprehended conduct has a tendency to embarrass or prejudice particular legal proceedings.

Ensuring a fair trial

The Court upheld the findings of King J that Underbelly might interfere with the ability of a jury to properly consider the evidence in the trial. This is because Underbelly gave an explanation of the murder, and contained a mixture of factual and fictitious dialogue which would not be distinguishable to a juror. Indeed, the Court seemed to view this combination as especially problematic, potentially exposing the jury to not only facts (which might be inadmissible) but also fictional conversations and events which might confuse the facts in issue at the trial.

Nine’s offers to amend the program

Nine suggested various ways in which the program could be amended to avoid possible contempt, and allow Underbelly to be broadcast. For example, Nine proposed pixellating faces, using anonymous names and not broadcasting episode 12 (the episode depicting the alleged murder) during the trial. Each suggestion was rejected by the Court, which held that any juror who had seen the program would easily be able to determine the real identity of the disguised characters.

Restricting information in the digital age

As the orders of the Court have only restricted the broadcast of Underbelly in Victoria, it has continued to be broadcast in other Australian states. Indeed, a hotel in South Melbourne broadcast the first episode of the series, obtaining a feed of Channel Nine’s broadcast from interstate.4

Further, internet technology has meant that episodes are available for download from various internet sites. Although it was argued that the episodes would inevitably become available on the internet, the Court did not have regard to this in restricting the broadcast by Nine. Additionally, the Court referred to the further existence of a “large body of material which relates in one way or another” to the issues in the trial. The Court nonetheless concluded that this, unlike Underbelly, could be handled by appropriate jury directions.

The public’s right to know and relevance of the Charter

The Court noted that before granting an injunction to suppress a publication (or broadcast), it is necessary to balance the potential prejudice which might be caused by the publication against the public interest in the publication being seen. It seems this balance occurs when deciding whether the relevant publication would, if it occurred, actually constitute a contempt.5

In relation to Underbelly, the Court concluded that there is little (indeed perhaps no) public interest in the broadcast of a drama series.

On a related ground, Nine raised (but later abandoned) an argument based on the right to “freedom of expression” found in s15 of the Victorian Charter of Human Rights and Responsibilities Act2006. The Court gave the argument a terse dismissal, observing that in a free and democratic society it may be appropriate to temporarily restrict freedom of expression to ensure a fair trial.6

How broadly can the Court make orders?

Third party broadcasters

Where a broadcast has the potential to prejudice a fair trial, society has an interest in ensuring that the broadcast is not made by any person. This will, almost inevitably, include persons who are not parties to the particular application to suppress.

King J directed her orders against every person in Victoria. This approach was overturned by the Court, which held that orders made in the inherent jurisdiction to prevent an apprehended contempt of court cannot be directed against non-parties.

It was noted, however, that even persons not named in the orders may be, in effect, required to comply. Any person with knowledge of an order who sought to deliberately frustrate the effect of that order could be liable for a contempt of court. As explained by McHugh J in JohnFairfax and Sons v Police Tribunal:7 “conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of Court”.

So, for example, if a television station broadcast Underbellywhile knowing about the orders against Nine, that station could be held in contempt on the basis that its broadcast frustrated the purpose of the suppression order (which might be characterised as ensuring that no member of the jury becomes aware of the prejudicial information in the program).

An interesting example of this form of contempt occurred in AG v Times Newspapers.8 There, a suppression order restricted two newspapers from publishing excerpts from the book Spycatcher. A third newspaper (not named in the orders) then published a series of excerpts. That newspaper was held to have committed a contempt by deliberately frustrating the purpose of the suppression order (which, despite being directed against only the two newspapers, was characterised as an order intended to prevent the information in the book from being published at all).

It is on a similar basis that the Court in Underbellywarned: “any person with knowledge of the order who saw fit to publish Underbelly in Victoria prior to the verdict of the matter of R v [A] would run a grave risk of contempt of Court”.

Although not raised by the Court, if Underbelly were broadcast before or during the trial of Mr Goussis, that might also constitute an actual sub judice contempt.9

Internet distributors

A person who makes Underbellyavailable on the internet also risks committing a contempt. The orders restrict the “transmission, publication, broadcasting or exhibiting” of Underbelly“in Victoria”.

This should be considered broad enough to extend to a person who makes Underbelly available on any website accessible fromVictoria. Such a view is supported by the High Court judgment in Dow Jones and Company Inc v Gutnick.10

Although a defamation case, the High Court in Gutnick held that a defamatory story on a website was “published” in any place where it could be comprehensibly accessed (that is, downloaded onto an individual’s computer).11

There appears to be no good reason why similar reasoning would not apply to an interstate internet provider of Underbelly.

Victorians who have accessed Underbelly

It is unclear whether the orders would affect a person who used the internet to access Underbelly. The orders, on their face, seem directed towards providers of the program rather than viewers. The question, as above, is whether viewing Underbellycould be characterised as deliberately frustrating the purpose of the orders.12

On one view, watching the program frustrates the purpose of the orders by prejudicing the ability of that person to serve on the jury in the trial of Mr Goussis. This is, however, a particularly broad characterisation of the breadth of the orders. For persons ineligible for jury service, such as Australian lawyers, it is unclear how viewing Underbellyfrustrates the purpose of the orders.

In any event, other laws (such as laws concerning breach of copyright) may be breached by those accessing Underbelly.

Broadcast of Underbelly and future trials

Following the conviction of Mr Goussis, the orders which restrain the broadcast of Underbellyhave ceased to have effect. The future of the programdoes, however, remain unclear.

In a media release dated 29 March 2008, Victorian Director of Public Prosecutions Jeremy Rapke QC stated: “I will not hesitate to take contempt of court proceedings against any person or organisation that deliberately publishes Underbelly or any part of it”. Mr Rapke warned that a number of upcoming proceedings might still be prejudiced if Underbellywas shown.

Accordingly, a person who shows Underbelly might commit a contempt by publication if the broadcast is shown to have the tendency to interfere with a particular criminal proceeding.

Mr Rapke’s comments also signal a bullish approach in future trials, towards seeking formal orders restraining broadcast of the program.

If, in spite of the above, Underbellywere broadcast (or widely distributed), a person charged with crimes depicted in the show might seek a permanent stay of proceedings on the basis that they could not receive a fair trial.Such an order is, however, extremely rare. It is important to note that a contempt of court does not necessarily remove the possibility of a fair trial.

The High Court considered this issue after radio host Derryn Hinch infamously broadcast the previous convictions of Father Michael Glennon in the lead up to Glennon’s trial on charges of sexual assault.

The Full Court of the Victorian Supreme Court entered a verdict of acquittal in favour of Father Glennon, on the basis that he could not receive a fair trial due to prejudice caused by Mr Hinch’s broadcasts. The High Court overturned the acquittal, stating that there was no necessary inconsistency between a finding that a contempt had been committed and the possibility of a fair trial.

The High Court recognised that, in most cases, appropriate jury directions could cure any prejudice caused by a pre-trial publication.

Nonetheless, prevention is better than cure, and so it is likely that in future proceedings the courts will make further orders restraining the broadcast of Underbelly. Accordingly, it appears unlikely that the characters in Underbelly will be seen in Victorian lounge rooms while their real-life counterparts continue to be appearing in the courts.

BEN JELLIS is a solicitor at Mallesons Stephen Jaques, practising mainly in administrative law and commercial litigation. MYLES TEHAN is a solicitor at Mallesons Stephen Jaques, practising mainly in commercial litigation.

1. [2008] VSCA 49.

2. [2008] VSC 73.

3. The Court did not refer to the circumstances surrounding the restrictions on the broadcast of the TV show Blue Murder in New South Wales during the 1990s.

4.Underbelly ratings first lost in court”, Herald Sun, 15 February 2008.

5. The Court of Appeal referred (at [17]) to the comments of Jordan CJ in Ex Parte Bread Manufactures; RE Truth & Sportsman Ltd (1937) 37 SR(NSW) 242. The case concerned determination of whether an actual (as opposed to apprehended) contempt had occurred.

6. See Richardson J in Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 at 575.

7. (1986) 5 NSWLR 465 at 476-477.

8. [1992] 1 AC 191.

9. On the basis that the broadcast has a real tendency to interfere with pending criminal proceedings: Hinch v Attorney General (Vic) (1987) 164 CLR 15.

10. (2002) 210 CLR 575.

11. Note 10 above, at 606-7.

12. Herald and Weekly Times Pty Ltd & Ors v A [2005] VSCA 189 at [28]-[29], per Maxwell P and Nettle J.

13. See Hinch v Attorney General (Vic), note 9 above.

14. See R v Glennon (1992) 106 ALR 177 per Mason CJ and Toohey J: “Apart from the unique case of Tuckiar v R, there has been no other instance in the judicial history of this country of an accused’s conviction being quashed and a verdict of acquittal then entered on account of the potential prejudicial effect of pre-trial publicity” (at 181) (citations omitted). In the UK, “Judges occasionally decide that a fair trial is impossible because of earlier press reporting ... but the Court of Appeal usually takes a robust attitude towards publicity”, see G Robertson and A Nichol, Robertson and Nichol on Media Law, Sweet and Maxwell, 2007, p405.

15. R v Glennon, note 14 above.

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