What a disaster. The Underbelly series will not go to air in Victoria or online, with all that implies for Channel Nine in the ratings this year. Having viewed the episodes, it wasn’t just the lawyers for the accused who argued for suppression before Justice Betty King this morning, but the Office of Public Prosecutions as well.

From this we can draw the conclusion that the episodes were dynamite from a contempt of court point of view. Justice King said: “The series explains to a large degree why the person was murdered. That is really what is the subject for the trial.” Indeed.

All of which intensifies the question buzzing around legal and media circles. How could it possibly have come to this, given that the legal problems were entirely predictable? What was the legal advice, and what were the lawyers thinking?

The Melbourne legal profession, now well familiar with the difficulties of negotiating Gangland-related media issues, are suggesting that if only Channel Nine had used some local media law talent perhaps the problems could have been avoided.

Instead Channel Nine used Sydney lawyers from the firm Johnson Winter Slattery. The gun of the JWS legal team is Mark O’Brien, a lawyer known in Emerald City for his aggressive approach. “He is an extremely tough advocate in a classic Sydney brawling way,” says one barrister who has come up against him.

O’Brien’s previous claims to fame include the famous letter on behalf of Alan Jones that resulted in the ABC deciding not to publish the Chris Masters’ Jonestown biography, though this says more about the ABC’s backbone than O’Brien’s letter-writing abilities.

O’Brien went on to act for Jones’ mate Tim Priest, who was successful in an out of court settlement in a defamation action over the book.

At some point in the Jonestown saga, I am told, a wag managed to get a bumper sticker on to the O’Brien Mercedes. It read: “I don’t listen to Alan Jones, and I vote.”

O’Brien has worked for Channel Nine and PBL for a long time and was once described as James Packer’s “lawyer of choice”. He was previously with Gilbert and Tobin, who lost him and other senior media lawyers to JWS in November 2006.

According to the JWS website, O’Brien is known for “high-stakes” work, such as representing Publishing and Broadcasting Limited and the Australian Rugby League in the Superleague dispute with News Limited:

Mark is regarded as a trusted advisor to media corporations on many commercial aspects of their business including, broadcasting issues, contempt and copyright and intellectual property… Many corporate clients now regard Mark as a trusted advisor on issues outside the media area including ICAC and ASIC investigations…


Justice King has also ordered the pulling of Underbelly excerpts and character profiles from this website, which is understandable. The website includes this “family tree“, to be populated from tomorrow night, promises that users can “click on a character to find out who they are and what they’re up to. Find out who’s in jail, who’s in bed and who’s in the morgue. Updated every week.”

There must be an explantion for the situation in which Nine found itself, consistent with the undoubted callibre of its legal advice.

Channel Nine are likely to rush straight to an appeal, perhaps even before this edition of Crikey hits your inbox, but they can hardly expect to have the decision overturned in time for the scheduled screening tomorrow night.

Mark O’Brien and Channel Nine did not return calls asking for comment before Crikey’s deadline this morning.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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