The Underbelly saga was back in Victoria Supreme Court this morning. It has been adjourned until tomorrow and Justice Betty King is yet to make a decision on the pressing issue of whether or not the trial of a man – whose name has been suppressed – will have to be adjourned because of the potential prejudice that might result from the screening of Underbelly by the Nine Network in Victoria from this Wednesday.

At the weekend there were suggestions of a deal between the Director of Public Prosecutions in Victoria and lawyers for Channel Nine, part of which was that the trial of the un-named person would be adjourned until such a time as Underbelly had become a distant memory in the minds of potential jurors. No deal was agreed today, so the saga, as they might say at Nine, will go right down to the wire.

It is all very messy, and the Underbelly case raises an important question about the relationship between the media and the justice system.

What we have here is a clash of two cultures. Channel Nine is driven by one thing and one thing only – commercial success. And commercial success depends on ratings. Channel Nine has been languishing in the ratings game and it has promoted Underbelly as a key to its salvation. It wants this program to go ahead in Australia’s second largest TV market, Victoria, come hell or high water.

The justice system on the other hand is underpinned by something a good deal more serious – the right of each and every person to receive a fair trial. This right means that pre-trial publicity must of necessity be measured, accurate and strictly non-controversial.

Then there is second important principle. The justice system says that receiving a fair trial means in part, ensuring that justice is not delayed unnecessarily. If an accused person has a matter set down for trial, it should only be adjourned in the most exceptional circumstances. Why should an accused person have to unnecessarily endure the mental and physical anguish that comes with waiting for serious criminal charges to be heard against them simply to suit the whims of media executives?

Channel Nine’s commercial interests should not be allowed to derail the fundamental right of a person to a fair trial. For Channel Nine’s lawyers to suggest that a trial should be adjourned, so that their client can boost its revenue, is extraordinary and sets a very dangerous precedent.

All Channel Nine had to do was wait perhaps 12 months, or even more, until all Underbelly related trials had been completed before it showed its television series purporting to portray Melbourne’s gangland. If Channel Nine continued to bleed in the ratings as a result then so be it. In a democracy, the right to a fair trial should always take precedence.

Peter Fray

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