Last night, I watched the documentary The Fisherman on ABC television. Some of you may recall that this documenary was the subject of a recent High Court decision, Australian Broadcasting Corporation v O’Neill  HCA 46. The High Court removed the interlocutory injunction to which the documentary was subject.
I didn’t have time to write anything about the case at the time, as I was buried under a mountain of marking, but if you want an excellent and punchy analysis, may I suggest Armagnac’d’s recent post on the topic? I shared Armagnac’d’s pleasure at the emphasis on freedom of speech, and his discomfort about the way in which the majority characterised O’Neill. Sure, he’s a convicted child killer, but does that mean that he can be treated as beyond redemption by the law of defamation?
Do I feel differently now that I’ve seen the documentary? Well, I’m glad I got to see it. It was interesting, although somewhat depressing.
The thing which worries me about the whole procedure above is that none of the judges (the trial judge, the Full Court of the Supreme Court of Tasmania or the High Court) were given an opportunity to see the documentary before making a decision. I think the comments of Kirby J (in dissent) at paras  –  are pertinent:
“Instead of applying for an expedited hearing of the trial of the substantive action, the ABC…contested the provision of temporary protection until the asserted justification of the intended broadcast could be judged at trial. Callinan J, in circumstances not wholly dissimilar to the present, remarked that the “claimed need for urgency of communication to the public” has, on occasions, been “exaggerated”:
“[Earlier cases] show that the assertion that news is a perishable commodity often lacks foundation and the ends to which publishers may be prepared to go in pursuit of their own interests. The asserted urgency as often as not is as likely to be driven by commercial imperatives as by any disinterested wish to inform the public. It would be naive to believe that the media’s priorities would be otherwise … It will be rare in fact that the public interest will be better served by partial truth and inaccuracy this Tuesday than balance and the truth on Friday week.”
Even if the delay in securing a hearing of the respondent’s substantive proceedings against the ABC would, as here, have been more than a few weeks, it is hard to believe that it would have been as long as that occasioned by the interlocutory appellate process launched by the ABC. This is one reason why appellate courts are, and should be, reluctant to interfere in the provision of interlocutory injunctions. The course adopted suggests that the appeals have been brought by the ABC in an endeavour to prove a point that, even in so grave a defamation as that alleged here, free speech trumps not only the reputation of the respondent, but also his right in principle to have his reputation protected until the contest can be decided on the merits in a full hearing.” [citations omitted]
The documentary was not as defamatory as I thought it would be. O’Neill obviously has deep-seated psychological problems, and had a troubled upbringing. He came across as pleasant and intelligent, but somewhat evasive. At a subconscious level, I found something about him disturbing. Davie investigated possibilities, but as he acknowledged, in the end he couldn’t actually prove anything. All he could suggest was that the movements of O’Neill warranted further investigation. O’Neill apparently told people he was responsible for the death of the Beaumont children, but he also told people he was a Vietnam veteran, a drover, an accountant, that he an ASIO spy and that his mother’s boyfriend was a gangster who shot him. Davie notes that none of the latter claims were true.
I think that there is a right to freedom of speech, and it was in the public interest that this documentary be shown. Of course, in saying that, I note that I have no expertise whatsoever in defamation law, and so my opinion is tantamount to a lay person’s opinion.
However, I also think Kirby J is right. It would have been fairer to the plaintiff to expedite the final hearing of the defamation trial rather than overturn the interlocutory injunction. That way, the trial judge could have decided whether the documentary should be shown for once and for all. The trial judge would have had an opportunity to make a fully informed decision with all the evidence, taking into account freedom of speech and public interest. If one applies the reasoning of the majority, it seems that a plaintiff cannot ensure that release of defamatory material can be deferred until a proper determination is made.