Channel Nine will not be able to screen Underbelly in Victoria. The Victorian Court of Appeal has upheld the banning of Nine’s much vaunted portrayal of gangland life in Melbourne until after the trial of a person who is portrayed in the series. And the court has savaged Channel Nine and its advisers for their lack of concern about anything other than ratings and profits – although of course the Court puts it much more eloquently than that.

To recap – in February Victorian Supreme Court judge Betty King ordered that the screening of the Underbelly series be banned in Victoria until the completion of a trial against a person known only as “A” (the person’s name has been suppressed for legal reasons). “A” is alleged to have murdered “B”, another person portrayed in Underbelly whose name is also suppressed for legal reasons.

A key witness for the prosecution in the trial of “A” is “X” (name also suppressed for legal reasons) – who is also portrayed in Underbelly. The murder of “B” is, as the Court of Appeal notes, the subject of episode 12 of the series and “B” and members of his family are portrayed in eight of the episodes leading up to episode 12. “X” also features in the series.

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As the Court of Appeal observes:

In our view, it is beyond argument that the publication of episode 12 to prospective jurors, and more specifically the exhibition of that episode during the conduct of the trial has the potential to constitute a most serious contempt of court. Indeed, it is difficult to conceive how the applicant’s advisers could ever have thought otherwise. The proposed publication goes to the very heart of the trial about to occur.

Underbelly gives a huge free kick to the police and prosecutors in their forthcoming trial against “B” that if shown in Victoria “had a jury been empaneled the trial would have commenced with the prosecution case effectively being supported every Wednesday evening by the weekly ‘docu-drama’,” the Court says.

And what of the proposal by Channel Nine and its advisers to get around their multi-million dollar problem by showing a specially edited Victorian version of the series? Laughable, says the Court of Appeal.

Pixelating faces and the use of anonymous names, as proposed by the applicant as a “Victorian Version” would have achieved nothing. The jury, once empaneled, would have had no difficulty in establishing from the evidence put before them in the trial, the identities of various characters portrayed in the Underbelly series, the Court said.

There was in this case, “total indifference” by Channel Nine “to the interest of the community in the fair trial of ‘A'”, the Court of Appeal concluded.

There are a number of disturbing questions which emerge from Channel Nine and the Victoria Police’s conduct in this matter.

The first is, how did Channel Nine’s advisers, including their legal advisers, get it so wrong when it was so crystal clear that there was a serious problem with screening the Underbelly series in Victoria, given the pending trial of “A”?

And what of the role of Victoria Police in assisting with the making of the series? They are portrayed as heroes – what a surprise. But why did they cooperate at all given that there are outstanding trials do be dealt with? The Victoria Police should not have gone near Underbelly given the circumstances.

Meanwhile, a Nine insider writes:

Very good information puts the accumulated forgone revenue on failure to get Underbelly on (legal) screens in Melbourne well in excess of $2 million per program, especially for the opening four shows which are likely to have received the peak figures. If in fact the audience grew in Melbourne over the series, the figure may be approaching $3 million. This is based on internal Nine estimates, including the halo effect of increasing the ratings of other shows on Wednesday nights and the high likelihood that good Melbourne figures would lead to weekly national wins over Seven. Add the legal costs which are well into six figures, and the loss is staggering.

Apparently the network’s new venture capital owners are not very happy and demanding that heads roll. Plans to try and rush an official DVD release into shops to recover some income have already been stymied by obvious legal problems and a difficult situation with producers, Screentime.

Not to mention the huge black market already selling the final episodes only hours after they were completed to what the industry calls “off line” stage – minus a few sound and visual effects of no great importance. Nine were so dull that viewing copies sent to various legal, technical and official viewers were not even watermarked, allowing instant and untraceable copies to hit the streets within minutes. And I mean minutes.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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