Doco spin as easy as ABC

Murdered toddler Evelyn Greenup

Last night’s Four Corners on the Bowraville murders of three Aboriginal children some 20 years ago in northern New South Wales made rivetting TV.  It painted a picture of a dysfunctional Aboriginal community riddled with alcohol and substance abuse; a racist local community with white males preying on young Aboriginal girls by plying them with drugs and alcohol; a seriously deficient initial police investigation marred by racist assumptions about the local Aboriginal community; and most dubiously claims that subsequent prosecution decisions and actions have been incompetent or half-hearted.

However, the Four Corners program raised as many questions as it answered, mostly about the propriety of its own actions and decisions and the slant that it put on the story.

Perhaps the most remarkable thing about the program was that it:

  1. accused a particular individual named Jay Hart of being a serial killer even though he was acquitted of two of the murders and has never been charged with the third, mostly because no body has ever been found and it isn’t truly certain that the alleged victim is even dead;
  2. canvassed the evidence against the alleged killer in very considerable detail; and
  3. argued that it still wasn’t too late to recharge the accused man with at least one of the murders despite the usual double jeopardy rule that precludes recharging a person who has been acquitted of a crime.

Presumably Four Corners’ lawyers advised that the case against the accused killer was sufficiently strong that the ABC would be able to successfully defend any defamation action he might bring against Four Corners, either on the basis of truth or some combination of fair comment and qualified privilege.  Detailed legal advice is always obtained in relation to any program of this sort.

However, and given that Four Corners was arguing for the accused man to be retried, I wonder what their legal advice said about the prospects that, if any new charges were in fact laid in the near future, the content and prejudicial slant of the Four Corners program itself would certainly result in defence lawyers applying to stay the trial on the basis that it was impossible for the accused to receive a fair hearing.   There’s certainly no current legal prohibition on running such a program because there are no current charges and no supression order.  However, on the prevailing authorities (especially R v Glennon which concerned an alleged pedophile Catholic priest and prejudicial statements by media shockjock Derryn Hinch) there would be a real possibility that last night’s Four Corners program might cause any new trial to be aborted or stayed for a significant period of time.

However, that’s far from the only problem with last night’s program.

Reporter Debbie Whitmont also repeatedly asserted (or had her interviewees assert without contradiction) that the failed prosecutions for the two murders that have gone to trial were incompetently conducted, because both trials should have been held together or alternatively evidence of the other deaths should have been introduced into each trial irrespective of the fact that it did not relate to that death.  The clear implication was that the DPP had conducted the prosecution, especially the second one in relation to toddler Evelyn Greenup  in 2004, in an incompetent or half-hearted manner.  Four Corners relied on the seemingly weighty authority of retired NSW Chief Coroner John Abernethy:

JOHN ABERNETHY: I commented on it in my judgment and suggested that the director of public prosecutions look at whether that evidence, some of that evidence in relation to all three could be used in the prosecution of the murder of Evelyn Greenup. …

NICHOLAS HARRISON, FORMER PROSECUTOR, DPP: I had the view at the time that if that matter was to run to trial, it was being run as a trial because it was one of those trials that you had to run, not a trial where a conviction was, you know, would be well justified.

DEBORAH WHITMONT: And despite the coroner’s recommendation, the jury never did get to hear about the other two children.

The clear implication is that the DPP was incompetent in failing to follow the coroner’s suggestion.  However, no mention was made of the fact that the admissibility of “similar fact” evidence from other crimes, especially in a highly emotive, controversial situation like the Bowraville cases, is fraught with difficulty.  A court will only allow such evidence where “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused” (see Evidence Act 1995 (NSW) s 101).  Without knowing a lot more about the circumstances and evidence than the information Four Corners provided, it is impossible to assess whether this evidence would have been admitted had the DPP sought to adduce it.  Nor can we assume, as Whitmont tacitly does, that the DPP failed to consider the question carefully (which is all that Abernethy recommended should be done).

However that’s not the only misleading spin Whitmont placed on her story.  Her ultimate hypothesis was that there was now powerful new evidence which would allow fresh murder charges to be laid against Hart in relation to the death of Clinton Speedy despite the double jeopardy rule:

DEBORAH WHITMONT: After the trial, the families asked Gary Jubelin what more they could do. Jubelin thought there was no point reinvestigating Clinton Speedy’s murder because Hart had already been acquitted and he couldn’t be charged again.

GARY JUBELIN: And I think I threw away a flippant line, unless you get the double jeopardy legislation overturned.

DEBORAH WHITMONT: And in 2006 it was. The law was changed so that in serious cases there can now be new charges. And if the case is reopened Gary Jubelin says his investigation has uncovered important evidence that wasn’t heard at Hart’s first trial. That new evidence goes back to the night Clinton Speedy was last seen heading off drunk with his young girlfriend to Jay Hart’s caravan. A few hours later before dawn Michael Scafidi was in a delivery truck coming into Bowraville when he saw a body lying in the middle of the road. It was a young Aboriginal man and he wasn’t moving. …

DEBORAH WHITMONT: Twenty years on, the Bowraville families still say it isn’t too late to resolve the murders, if there’s a will.

The reference to “double jeopardy legislation overturned” is to 2006 legislation which amended the Crimes (Appeal and Review) Act 2001Section 100 now allows the Court of Criminal Appeal to order a new trial for a “life sentence offence” where it is satisfied that there is “fresh and compelling evidence”.  However, s 102 defines “fresh” in the following terms:

(2) Evidence is “fresh” if:

(a) it was not adduced in the proceedings in which the person was acquitted, and

(b) it could not have been adduced in those proceedings with the exercise of reasonable diligence.

Given that definition, it is frankly bizarre that Whitmont proceeded to observe without comment:

DEBORAH WHITMONT: Michael Scafidi had contacted the police back in 1991 but somehow his evidence never made it to Jay Hart’s trial for Clinton Speedy’s murder.

In other words, and completely contrary to the slant of Whitmont’s story, the evidence of truck driver Scafidi could under no circumstances form the basis of re-laid charges against Hart for the death of Clinton Speedy.  The evidence simply isn’t “fresh” in the required sense.  And yet Whitmont created the impression that it was outrageous and heartless for the DPP to have refused to re-open the case on the basis of that evidence.  It’s impossible to believe that Whitmont and Four Corners were unaware of that fundamental problem with their central hypothesis, having regard to the high level legal advice they would certainly have obtained before running the program.

The final intriguing question about last night’s Four Corners story relates to the extraordinary access Whitmont clearly had to serving and former police officers and recently retired NSW prosecutors.  Many viewers would have admired the reporter’s thoroughness and in-depth investigative journalism.  However there is an alternative explanation.  It’s difficult to believe that police and prosecutors, especially current investigator Gary Jubelin, would have chosen to co-operate and speak as frankly as they did without at least informal official clearance.  Moreover, the story has clearly been in preparation for some time, so that clearance would have come from the outgoing NSW Labor government.

Apart from a long retired police officer who resignedly took a mea culpa approach to his role in the initial investigation when interviewed, the major official ‘villain’ in this story is the (unnamed) Director of Public Prosecutions.  However, observers of NSW public affairs will be well aware that the DPP until a couple of weeks ago was Nicholas Cowdery QC.  They would also be aware that the Labor government, and outgoing Attorney-General John Hatzistergos in particular, hated Cowdery’s guts.  In fact ABC’s Australian Story recently featured a piece on Cowdery which highlighted that enmity.  I wonder whether Four Corners was a conscious tool of Hatzistergos’s final mean-spirited revenge on Cowdery?

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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14 Responses to Doco spin as easy as ABC

  1. Paul Bamford says:

    Good post Ken. I find it difficult to believe that the DPP’s office, under Cowdery, would have let the case go if they thought there was any chance of a successful prosecution.

  2. Patrick says:

    Great post Ken, I’d love to see if Four Corners had a response.

  3. Paul Frijters says:

    yes, good post. Dont hold your breath for a response though.

  4. derrida derider says:

    Yes, a great post – and precisely for that reason it won’t get a response, unless maybe Media Watch has a go.

    I wonder if Whitmont realises the motivation behind official co-operation in her story.

  5. paul walter says:

    It’s a bit strong to say “accused”, it progressively identified a series of indications re the murders and Hart.
    Let’s not sideline the serious real issue of the continuing, unarrested and tragic deterioration indigenous communities face, on a witchhunt for the right wing media.
    I have had enough of the Salusinsky/Bolt types lately.

  6. Patrick says:

    PW, did you read Ken’s last post? It is still on the Troppo front-page if you are curious.

    Anyone who had might think that your comment at 5 is just plain stupid.

  7. paul walter says:

    Patrick, spare me your conspiracy theories.
    I saw 4 Corners also and we must have watched two different shows, judging by your response.
    You did watch 4 Corners, didn’t you?
    Whether or not politics was involved is only peripheral to the real story; one of human suffering-and by the evidence presented in the episode.

  8. Patrick says:

    I wasn’t talking about the show, PW, which is why my comment, uh, didn’t mention it. I was just commenting on the idiocy of your accusing KP of playing any part in

    sideline[ing] the serious real issue of the continuing, unarrested and tragic deterioration indigenous communities face, on a witchhunt for the right wing media.

    FFS the guy knows more about that ‘serious real issue’ than both of us put together and then by an order of magnitude.

  9. paul walter says:

    Patrick, perhaps it comes in the use of the word “accused”, against my view that the 4 Corners show sequentially presented evidence from which an implication was finally drawn, involving Hart. Questioning the use of the word accused does not constitute a whole sale attack on Ken Parish (puhleese!).
    It is interesting that the article concedes that the case against Hart would have to be strong before the legals would sanction the episode.
    as for,
    ” the clear implication was that the DPP was incompetent in failing to follow the coroner’s suggestion”, so be it, the families of the victims obviously think so.
    Better it had gone to court and the jury decide, on ALL not some, of the evidence. What’s at stake here? Justice or legal narrowist conventions developed to fit within a strictured budget?
    I never personalised as to KP, merely queried the trajectory. The article itself is as valuable as anything I’ll read for some time and I daresay KP was looking for a healthy discussion on these things, by the structure of his article.

  10. paul walter says:

    Perhaps if Hart were retried, that would set a precedent by which Snr Serjeant Hurley could be retried for the death of Mulrunji.
    Would that be a win for”justice”?

  11. Nicholas Gruen says:

    Great post Ken,

    Alas I expect your hypothesis is broadly right. In many ways the ‘quality’ media are really an upmarket version of the gutter press. The ABC is often none too principled if it’s ‘good content’.

  12. paul walter says:

    Great corollary from Nicholas Gruen. The imposed from above deterioration of ethics at auntie and SBS has been a feature of the last decade, which is why the former is now mockingly called “Murdoch Media”.
    Meanwhile, interesting to read that British Murdoch is about to be sued to its underwear by an army of celebrites reacting to the phone tapping antics of the sociopath’s tabloid News of the World.

  13. Patrick says:

    It’s illuminating that a self-professed socialist describes the working classes as sociopaths…

  14. Ken Parish says:

    I think he means Rupert.

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