Victorians finally got to see part of the multi-million dollar TV drama Underbelly in September, following a conviction in the murder trial that had prevented it from being shown in the state.

Supreme Court Justice Betty King imposed a suppression order on the 13-part weekly series in February after the Department of Public Prosecutions argued screening it would prejudice the March trial.

The decision to ban the broadcast in Victoria focused attention on the power of the Victorian Supreme Court to suppress publications or broadcasts which might prejudice a criminal trial.

The question of whether a TV drama should be prevented from depicting events which are the subject of a current criminal trial had not been raised before in Victoria.

Other issues also emerged such as the ability of courts to restrict the flow of information in the “digital age” and how to balance freedom of speech with the right to a fair trial.
The Nine Network appealed the orders made by Justice King which restricted the “transmission, publication, broadcasting or exhibiting” of Underbelly – which was based on Melbourne’s gangland war.

The appeal was unsuccessful with the Court of Appeal upholding the findings of Justice King that the TV drama might interfere with the ability of a jury to properly consider the evidence in the trial.

This is because Underbelly gave an explanation of the murder, and contained a mixture of factual and fictional dialogue which would not be made clear to a juror. The Court found the series could potentially expose the jury to not only facts (which might be inadmissible) but also to fictional conversations and events which might confuse the facts presented at the trial.

The ban on Underbelly expired when a Supreme Court jury convicted Evangelos Goussis of the 2004 killing of Lewis Moran in May 2008.
Between 1998 and 2006, more than 30 people were killed in Victoria – deaths linked to various feuds between members of Melbourne’s organised crime underworld. Some of the murders remain unsolved and others are subject to criminal proceedings in which charges have been laid but which have not yet gone to trial.

Which is why only the first five episodes of the 13-part series have been shown after a Supreme Court ruling by Justice Peter Vickery saw the sixth episode barred so as not to prejudice another accused criminal’s upcoming trial.

The episodes which did go to air were edited to meet concerns raised by the Director of Public Prosecutions, Jeremy Rapke, QC. The face of one actor, who appears briefly, was pixellated.

The Nine Network did not seek to screen the remaining seven episodes of the show, but has said it has plans to commission a second series of Underbelly.