By Tim Dick
THE High Court has lifted an injunction on an ABC documentary that links a convicted child murderer to the disappearance of Adelaide's Beaumont children, a move which is being interpreted as a significant win for freedom of speech.
James Ryan O'Neill was convicted of murdering a nine-year-old Tasmanian boy, Ricky Smith, in 1975, and confessed to murdering another, Bruce Wilson, the same year.
O'Neill is serving life in prison.
The documentary, The Fisherman, follows former detective Gordon Davie, who says O'Neill was involved in the presumed murders of the Beaumont children Jane, 9, Arnna, 7, and Grant, 4.
They disappeared from an Adelaide beach on Australia Day, 1966. It is one of the country's most notorious unsolved crimes.
The documentary was due to screen in April last year.
O'Neill won an injunction from the Tasmanian Supreme Court, days before the program was due to be broadcast, on the grounds that it would defame him. Rather than leaving O'Neill to sue for damages after the broadcast, the court banned its transmission. This was despite accepting that the ABC would probably be able to prove the truth of the allegations.
The Tasmanian judge, Ewan Crawford, found that it was generally not in the public interest for the media to allege that someone had committed a crime before being convicted of it.
Yesterday, the High Court disagreed, by a 4-2 majority, and criticised Justice Crawford and the Full Court of the Tasmanian Supreme Court for failing to give enough weight to freedom of speech, and lifted the injunction.
The Chief Justice, Murray Gleeson, in a joint judgement with Justice Susan Crennan, backed the right of the media to report on criminal matters without waiting for the police or the courts to do their business.
"Condemnations of trial by media sometimes have a sound basis, but they cannot be allowed to obscure the reality that criminal charges are sometimes laid as a response to media exposure of alleged misconduct," they said. "The idea that the investigation and exposure of wrongdoing is, or ought to be, the exclusive province of the police and the criminal justice system bears little relation to reality in Australia or any other free society.
"It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech. It is another matter for a court to interfere with the right of free speech by prior restraint."
They called O'Neill "a most unpromising candidate for this unusual form of relief" because he was a convicted murderer who had confessed to another murder.
"To say of him that he is suspected of the murder of the Beaumont children, and that he is a multiple murderer, might not attract an award of substantial damages," they said.
David Rolph, a defamation lecturer at the University of Sydney, said the majority judgements were "heartening" as they recognised the media had an important role to play.
The ABC welcomed the decision, and said it would screen the film on October 26.