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:
- 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;
- canvassed the evidence against the alleged killer in very considerable detail; and
- 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.
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