The defence lawyer for several recently convicted terrorists has slammed The Herald Sun for today’s front page story which states that at least two of the men had targeted Melbourne’s West Gate Bridge for attack.
The front page of the Melbourne tabloid has a full blown image of Abdul Nacer Benbrika superimposed over a picture of the bridge with the headline WEST GATE BOMB PLOT. The accompanying story reveals details of a conversation in which one man says “You could bring down the West Gate”
Rob Stary, the lawyer for five of the accused terrorists, says The Herald Sun report is highly prejudicial because it has blown out of all proportion an allegation that was never led in court because even the prosecution agreed it was “inconsequential and without substance.”
The first paragraph of Keith Moor’s article reads “The West Gate Bridge was one of several bombing targets for Muslim cleric Abdul Benbrika and his home-grown Melbourne terror cell.”
This is stated as fact, although in the trial this was never tested and went unheard by the jury because the prosecution and defence agreed the material “had no relevance to the proceedings.”
“So now to see this on the front page of The Herald Sun is disquieting to say the least,” says Stary.
Moor’s report is based on a conversation secretly taped by police between convicted terror cell member, Fadi Sayadi, and a supposed associate in which they talk about putting “thingos underneath” the bridge. Moor initially told Crikey that the jury had seen the allegations because they were included in a record of interview. However Crikey has been told this is not the case and that the evidence was never disclosed. On hearing this, Moor said this is irrelevant anyway because his report was not about the trial, but rather the broader picture.
The assertions in the story are obviously in the public interest. As Stary concedes the comments are “odious and repugnant.” But he defends this by pointing out “I often say I want to see the overthrow of the British monarchy. Does everyone get convicted on what they say?” The Herald Sun report does not break any laws of subjudice contempt because the trial ended yesterday, although there is a grey area regarding one of the accused, Shane Kent, who will face a retrial as the jury failed to reach a verdict. However, all of the men will appeal and consequentially Stary says the damage done to his clients by The Herald Sun story is “irretrievable”.
He believes that Moor was tipped off and says “The Herald Sun has been the conduit for misinformation from the AFP throughout the trial.”
Keith Moor denies he was fed the information by the police. He says he discovered the information independently.
“Nobody gave me anything on this,” he told Crikey.
Stary believes Moor has to say this to protect his source. Moor replies he hasn’t heard the taped conversation or read a transcript of it. Instead he has seen second hand material relating to it.
The laws of defamation are technically open to the men identified in the story. After all, the claim that they were plotting to bring down the West Gate Bridge certainly damages their reputation and lowers them in the estimation of others — the basic tests for defamation.
However, a defamation case against The Herald Sun would almost certainly fail because even if the report is wrong, the paper could claim the defence of “contextual truth,” arguing the story does the men no further harm because they are already convicted.
Keith Moor says “it’s the job of a newspaper to report widely on issues of public concern.” Defence lawyers say it is also the paper’s job to differentiate between allegation and fact and to properly contextualize the information so that readers can make a better assessment of its veracity.