R v A

[2008] VSC 73

IN THE SUPREME COURT OF VICTORIA Not restricted

AT GEELONG

CRIMINAL DIVISION

No. 1457 of 2007

R

v

A

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JUDGE:	KING J
WHERE HELD:	Geelong
DATE OF RULING:	12 February 2008
CASE MAY BE CITED AS:	R v A
MEDIUM NEUTRAL CITATION:	[2008] VSC 73

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Suppression Order - Television series – Fair trial of the accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Horgan SC	Office of Public Prosecution
For the Accused	Mr A Brand	Slade and Parsons
For the 9 Network Australia Pty Ltd, GTV 9 Pty Ltd	Mr B Murphy QC	Johnson Winter and Slattery

HER HONOUR:

1. This is an application for a suppression order in relation to the television series “Underbelly” which is due to air on Channel 9 commencing at 8.30 on Wednesday 13 February 2008.  In relation to this matter there is a trial due to commence of “A”, a murder trial, in which he is accused of murdering ”B”.

1. The series “Underbelly”, which I viewed yesterday in its entirety, apart from Episode 7, is about the so called “gangland wars” and murders that occurred over the period.  It is written in the series itself, at the commencement of each episode, that the series is based on real events which occurred between 1995 and 2003 or 2004, I am not confident of the last date.  The series purports therefore to the public to be factually based.  It is clear on viewing the program that it is to a large degree based upon fact.

1. The conversations that are included in the series are not necessarily based upon fact, some are, and they have been discovered from transcripts or listening devices, others are of course the figment of the writer's imagination.  That, however, may not be at all clear to the viewing public.  As there is such a strong factual basis to the material it will be very difficult, in my view, for the public to be able to sift between what is factual and what is fictional.

1. 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 of behalf of the Crown.  He is an accomplice and will have attached to his evidence the very strong accomplice warnings that attaches to such evidence.

1. 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 shown as a grieving parent.  “B” appears in Episode 1 and continues to appear throughout.  The murder occurs in Episode 12. 

1. 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 they are the persons who contracted for him to become involved in this murder.

1. 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.

1. A suppression order is something that is not done lightly particularly in relation to a matter such as this.  Channel 9 are not the producers of the series so I am informed.  Their decision is the decision on when to publish it.  Counsel appearing for Channel 9 could not tell me if they were aware of pending trials or not but Channel 9 made a decision that it was to air in this ratings period commencing tomorrow.

1. It is my view that to have a series running on the Gangland Wars, which will not relate to the persons who are witnesses, persons who are victim or victims, and the persons who are alleged to be those responsible for ordering the death of the deceased, running at the same time as the trial, makes it impossible for a fair trial to be achieved for “A”.

1. It is important that persons who are charged with criminal offences have their trials heard as quickly as possible, that is recognised and enshrined in the Charter of Human Rights which came into force in Victoria at the beginning of this year.  There are many practical reasons for it as well.  If this trial was to be adjourned it would take an enormous amount of time, at least a year, before one could contemplate re-listing the matter and in terms of re-listing, this show would have been aired and possibly achieved what Channel 9 hopes of it and that is, that it be in the lounge room of every person in Victoria, not to mention around the country.  It is only Victoria with which I am concerned. 

1. The pool of jurors will come from this community.  I think it would be exceedingly difficult to erase the material they have seen in this series from their minds, no matter what directions the judge gave.  There must be a recognition that directions will be followed by juries, and that may well prevent them from looking up the Internet, searching for things.  What it cannot do, in my view, is erase what has been put there in such graphic and compelling form.

1. 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.

1. 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.

1. I make that suppression order to be in place until the conclusion of the trial of “A”.  I will continue the suppression of “A’s” name as the whole point could be defeated otherwise.  Equally I remind the journalists that there are orders in respect of “X” , and I am sure others, but I cannot remember precisely, but you would all be advised to ensure that what you do publish from what has been said today does not prejudice the trial.

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