Across Melbourne this week there are quite a few DVDs being burned. Nothing unusual in that, expect that the hottest DVD around is a TV series that hasn’t even been shown yet – Channel 9’s Underbelly.

Lawyers, police officers, convicted criminals and anyone else who thinks they might get a mention in this dramatised version of Melbourne’s gangland activities are watching episodes to see just how accurate a portrayal of real life events this much vaunted program really is.

One lawyer who has watched two early episodes told Crikey yesterday that the series is “Pulp Fiction meets Lygon Street”.

But in addition to natural curiosity being the driver for some wanting to view an early copy of Underbelly, there is a more pressing and potentially dangerous reason.

Underbelly purports to deal with people who currently have cases before the courts. Tony Mokbel is one. Criminal defence lawyer Zara Garde-Wilson is another. And the series will no doubt portray in vivid detail some other colourful characters who might again face the courts. This is where it gets tricky.

If Underbelly portrays any person who is currently facing the courts on criminal charges in a poor light, then it might lead to that individual seeking a stay – or delay — in their trial.

In 1992, the High Court,  in a case involving former Catholic priest Michael Glennon who was hounded by broadcaster Derryn Hinch over s-xual assault charges, made it clear that if necessary, the courts can delay a trial, even indefinitely, if pre-trial publicity is prejudicial to the accused.

One “cannot exclude, as a matter of law, the possibility that an ‘extreme’ or ‘singular’ case might arise in which the effect of a sustained media campaign of vilification and prejudgment is such that, notwithstanding lapse of time and careful and thorough directions of a trial judge, any conviction would be unsafe and unsatisfactory by reason of a significant and unacceptable likelihood that it would be vitiated by impermissible prejudice and prejudgment. In such a case, a permanent stay may be granted,” the High Court said.

Channel Nine and the production company Screentime are apparently busy “de-identifying” characters in the series, like Mokbel, for this very reason. But will that be enough, given that so much of the series’ publicity to date has revolved around Mokbel and his alleged role in the gangland wars?

Lawyer Mirko Bagaric, who represented Mokbel in his fight to prevent extradition from Greece to Australia, told Crikey that while he is “not aware of any requests being sent to channel 9 – yet … I do know that if the show uses real names and this compromises Tony’s capacity to get a fair trial if he returns to Australia that part of the sequel to Underbelly could include channel nine execs being charged with contempt of court.”

And what if the series “vilifies” and “prejudges”, to use the High Court’s words, other characters who might yet be charged with other unsolved crimes? Will those individuals be able to argue to a court that the portrayal of them in Underbelly was so diabolical that they will be guilty before they even walk into a court room?

No wonder the DVD burners are smoking in Melbourne this week. Channel Nine and Screentime are on the legal high wire with Underbelly and at the moment they are looking a little shaky.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey