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Critics' Corner
6 July, 2005  
The Big Lie

Thursday night (July 7) is the night to stay home and watch SBS’s documentary on the McCabe case. See Peter Gordon in a tracksuit. See Jack Rush QC being feisty. See Tom Hughes QC in slow motion. And there’s Fred Gulson confirming what we all suspected about retaining documents. The evil tobacco boys cop a pasting and so does the “justice system”

imageReviewed by I. Box

Notwithstanding your reviewer’s long-running affair with small tobacco, it’s sublimely easy to hate Big Tobacco.

This documentary about the ill-fated Rolah McCabe case against British American Tobacco shows why. It’s a company that lies, cheats and intimidates.

Readers will recall the gaunt image of lung cancer sufferer McCabe, a smoker since age nine, who took on the baddies and lost; her case and her life.

Director Terry Carylon’s attempt to ride shotgun with the avenging sheriff, in this case Peter Gordon from Slater & Gordon, isn’t entirely successful.

This is partly due to the fact that the documentary seems to have got off the ground sometime after the 2002 landmark trial in which Victorian Supreme Court Justice Geoffrey Eames struck out the tobacco company’s defence, resulting in damages of $700,000 being awarded to McCabe. Eames found that BAT, through its lawyers, had destroyed damning evidence to prevent people like McCabe getting a positive result.

We are told early on of the McCabe family’s disappointment: “I just imagined shredding machines the world over starting up – it basically gave them the green light,” says McCabe’s daughter.

Then there were the heavy handed private dicks employed by BAT whose invasiveness was “beyond anything I’ve experienced,” according to Jack Rush QC.

They fossicked back 30 years trying to find dirt on the plaintiff.

The Big Lie picks up the story after the trial and, it appears, after the Court of Appeal decision which overturned Eames’ findings.

In this version of events Eames found the truth while the Victorian Court of Appeal was a “joke”. That’s pretty easy to digest as nowhere do we benefit from the sweet sound of reason from a blow-dried cigarette spinner or, even more compelling, a law firm PR.

The chronology is a more than a little confusing and the inherent drama of the case suffers because of it. Director Carlyon is forced to use bland, overlay footage of lawyers, ad nauseam; lawyers on footpaths, lawyers turning their heads, lawyers frowning and most irritatingly lawyers in slow motion.

This technique grated so heavily, your reviewer was sorely tempted to take up the exquisite pleasure again.

imagePeter Gordon (seen here), never shy of being filmed in a tracksuit, calls in Jeffrey Wigan, the real tobacco industry insider on which the film The Insider, starring Russell “Biffo” Crowe, was based.

After the Victorian appeal decision he gets a surprise call from another insider – Fred Gulson, ex general counsel and company secretary for WD & HO Wills (Australia).

Gulson is documentary gold. A big, brash, no bullshit sorta guy – the kind one might describe as a large male appendage if he wasn’t so clearly on the side of the angels.

Gulson adds frisson and fact to the case. He affirms the accuracy of Eames’ findings about the so-called “document retention policy” and he accuses the tobacco companies of harassing him and his family. He tells us what, somehow, we always suspected:

“The purpose of the document retention policy was to sanitise files of all sensitive documents.”

It was designed to “ensure no leaks of sensitive information in any jurisdiction in the world”.

imageGulson (pictured) thought that Eames’ interpretation of tobacco lawyer Brian Wilson’s document was the same as his interpretation. He added:

“It is the most egregious legal situation I’ve ever come across.”

Gulson is approached by the US Department of Justice which is running its $US300 billion fraud and racketeering case against Big Tobacco.

When he finally arrives to give his deposition in Washington he stalks out of the room as Jack Rush and the lawyer for the cigarette boys argue about whether the witness is allowed to have his affidavit in front of him while answering questions.

Anyway, as the High Court bangs another nail into the McCabe case it’s back to Slater & Gordon for a partners’ meeting to deliberate on whether it is possible to start again and prove the case on the evidence available.

Commercial considerations prevail. “On the commerce of it, it’s very hard to recommend,” opines one unnamed partner. The others nod, in serious agreement.

Even though they let this one rest, Peter Gordon vows to fight another case another day.

McCabe exposed a conspiracy to destroy evidence, just as the tobacco companies are involved in a conspiracy to inflict misery and death, in return for a good profit – of course.

For Peter Gordon the case was a life-changing experience: “The legal system is not equipped to do justice.”

A one hour Storyline Australia documentary to be screened on SBS, July 7, 8.30pm.

Produced by Terry Carlyon and William Birnbauer

Directed by Terry Carlyon