BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Diane Musgrave declared a conflict of interest and did not participate in the Authority’s determination of the complaint.

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Documentary entitled Murder on the Blade? – advanced opinion that Scott Watson wrongly convicted of murdering Ben Smart and Olivia Hope aboard his boat Blade – programme attempted to refute number of key elements of Crown case – allegedly contravened standards of good taste and decency, balance, fairness and accuracy

Findings
Standard 1 (Good taste and decency) – not an issue of good taste and decency to broadcast programme challenging validity of murder conviction– not upheld

Standard 4 (Balance) – majority view – programme authorial documentary – Guideline 4c allows discretion in respect of authorial documentaries – programme balanced – programme clearly acknowledged perspective from which it was made – acknowledged in introduction that other interpretations of evidence existed – presented sufficient aspects of Crown case – extensive media coverage of trial and subsequent events – application of the New Zealand Bill of Rights Act 1990 – not upheld

Standard 5 (Accuracy) – complainant’s concerns matters of interpretation of evidence – not issues of fact – no evidence of factual inaccuracies – not upheld

Standard 6 (Fairness) – programme’s portrayal of complainant’s different statements to Police and then to jury – not unfair – other general allegations of unfairness – no specifics alleged – not upheld

This headnote does not form part of the decision.

Broadcast

[1] On 7 November 2003 at 7.30pm on TV One, Television New Zealand Ltd broadcast a 90 minute documentary entitled Murder on the Blade? The documentary advanced the opinion of Keith Hunter, its writer and producer, that Scott Watson was wrongly convicted of murdering Ben Smart and Olivia Hope aboard Watson’s ketch Blade.

[2] Studio presenter Susan Wood introduced Murder on the Blade? as follows:

New Year's Eve isn't supposed to be about the dark side, but New Year's Eve 1997 was an exception. That night Ben Smart and Olivia Hope went to celebrate at Furneaux Lodge in the Marlborough Sounds. They were last seen boarding a yacht in the early hours of January the first 1998 in the company of a lone man. They have not been seen since. A desperate search eventually turned into a murder investigation. Scott Watson was arrested and after a three month trial was found guilty of murdering the pair. He was sentenced to life imprisonment with a minimum of 17 years in jail.

On appeal, Watson's lawyers did not pursue as a ground of appeal that a verdict could not be supported having regard to all the evidence. Rather they attacked some key rulings of the trial judge which they alleged led to a miscarriage of justice. The appeal was dismissed.

Two days ago the lawyers asked the Privy Council to hear a further appeal. The Privy Council declined the application. Watson is still in prison.

The documentary that follows, while not dealing with all the evidence produced at the long court hearing, challenges the basic evidence the police and Crown relied on to convict Scott Watson. The opinions contained in the programme are those of the presenter and author. They are one man's view.

[3] A superimposed title to the programme read:

Murder on the Blade?
A JOURNALIST’S VIEW
By Keith Hunter

[4] Keith Hunter opened Murder on the Blade? as follows:

This is Blade. She’s a 26 foot single masted steel yacht. The man who built her is in New Zealand's maximum security prison at Paremoremo. He was convicted of murder in 1999 after the disappearance of two young people whose bodies have never been found. The case against this man was that he killed them and that he killed them on Blade. I think that's wrong.

[5] Murder on the Blade? presented Mr Hunter’s opinion about the case under the following headings, indicated by a graphic at the beginning of each section:

• “The Mystery Ketch”
• “The Mystery Man” (Parts I and II)
• “The Headlines”
• “Cook Strait to Erie Bay”
• “The Arrival, the Hairs, and the Secret Witness”
• “The Two Trip Theory”.

[6] The programme made extensive use of re-enactments of aspects of the trial and the appeal in the Court of Appeal, and of statements witnesses made to police. Graphics at the bottom of the screen indicated the inquiry documents from which the re-enactments were sourced. The programme included Mr Hunter offering his views to the camera, and interviews with a number of witnesses at the trial.

[7] At the end of the programme, Mr Hunter concluded:
Everything else is entirely consistent with another scenario – a scruffy man off an ocean going two masted yacht kidnapped two young people at a party, almost by accident, and then sailed away over the ocean, which would explain why the police could not find the mystery ketch, nor the mystery man, nor any bodies.

[8] An acknowledgement at the beginning of the credits read:

SPECIAL THANKS TO
Mike and Jenny Kalaugher
Chris Watson
Guy Wallace

The Authority notes here that Mike Kalaugher is the author of The Marlborough Mystery, a book which maintains that Scott Watson is innocent; Jenny Kalaugher is Mike Kalaugher’s wife; Chris Watson is Scott Watson’s father; and Guy Wallace was a key Crown witness who gave evidence of taking Ben and Olivia and a lone man to a boat in the early hours of 1 January 1998.

[9] Mr Hunter’s opinion can be summarised as follows:

• The boat to which water taxi driver Guy Wallace took Ben and Olivia and a lone man was not Watson’s 26 foot single masted yacht Blade but a 40 foot two masted “mystery ketch” which has never been found.
• Guy Wallace and Hayden Morresey (one of the other two passengers on the water taxi who last saw Ben and Olivia alive) asserted on the programme that Blade was not the boat to which Ben, Olivia, and the lone man were taken. Various other people described having seen the “mystery ketch”. A re-enactment by actors showed Mr Wallace being challenged by police in January 1998 that “no one” had seen the ketch he described. Mr Hunter said in fact three other water taxi drivers had already told police they had seen “the ketch”. In support, actors quoted aspects of the statements of two of the water taxi drivers. Mr Hunter said that by the time of the trial those two water taxi drivers “would tell the High Court that they’d not seen the ketch at all”.¹ 
• The lone man was not Scott Watson but a “mystery man” who has never been located. Mr Hunter believes that Mr Wallace and other witnesses did not identify Scott Watson as the “mystery man”. Rather, they pointed to a photo of Watson in a police photo montage, in which Watson’s eyes were half closed, and they identified the eyes of the “mystery man” from this photo. Although the man in the photo was Scott Watson, Scott Watson was not the man they purported to identify. Guy Wallace stated on the programme that, had he been asked in court if the man in the dock was the “mystery man”, he would have said no. Mr Wallace said Scott Watson was not the man on the water taxi that night.
• The “obnoxious behaviour” of the “mystery man” was wrongly attributed to Watson, and by the time the jury retired Watson's character had been “annihilated”.
• Watson did not paint Blade after the murders to change her colour and conceal forensic evidence, as contended by the Crown. As stated by Mike Kalaugher, described by Mr Hunter as “a boatie”, this was “someone just doing some maintenance on their boat”.
• Watson did not “extensively and selectively” clean the inside of Blade, including the inside surfaces of cassette tapes, to remove evidence, as contended by the Crown. Rather, and as stated by “lifelong boatie” Jenny Kalaugher, this was “normal yachty behaviour”, to be expected after a boat goes through a storm, as Blade had done in December 1997. In any event, Mr Hunter said the cleaning allegation was “entirely undermined” because Watson had not cleaned a trail of his own blood from the carpet (made as a result of cutting his foot on 2 January 1998), and he would not have known to leave his own blood unless he could “read the DNA of blood stains just by looking at them”.
• The 176 scratch marks found on the inside of Blade’s hatch cover were not made by Olivia Hope, as contended by the Crown. A “much more likely explanation” was that they were made by Watson’s nieces. Watson’s sister Sandy talked on the programme about an occasion when Watson complained that her children had “tried to wreck [his] boat” by scratching the hatch and the compass box.
• Blade cannot have been the boat sighted in Cook Strait near the entrance to Tory Channel at about 4.30pm on New Year’s Day, as contended by the Crown. Blade arrived in Erie Bay some time shortly after 5pm. In a test trip on Blade, Mr Hunter demonstrated that it was impossible to make the trip in half an hour or a little more; the trip took two hours and twenty-nine minutes. Mr Hunter believes it is impossible that the boat seen by Crown witnesses was Blade, and that the aspect of the Crown case that Watson dropped the bodies of Ben and Olivia into deep water is therefore wrong.
• The presence of two of Olivia Hope’s hairs on a blanket on board Blade did not mean that she had been on board Blade. Watson could have brushed against Olivia at the party and later lain down on the blanket, there could have been a laboratory mistake, or “there was some other way”.
• The only aspect of the Crown case which now links Watson to the murders is the evidence of a secret witness to whom Watson confessed while in prison awaiting trial. That kind of evidence has been “discredited all over the world”. Mr Hunter noted that one of two secret witnesses recanted a year later, saying he made up the story under police pressure. The second secret witness was a repeat offender; he had a one-year sentence reduced to nine months for beating his partner with his fists, a knife and a steel bar, concurrent with a sentence for consuming morphine.
• The Crown’s “two trip theory” – that Watson was taken to Blade from Furneaux Lodge with water taxi driver Donald Anderson at around 2am, that Watson went back ashore, and that he returned to Blade around 4am on the water taxi of Guy Wallace – was unfair. The Crown introduced the “two trip theory” for the first time in its final address to the jury. Mr Hunter believes the theory is “what put Watson in prison in the first place”. He believes that the defence could not have predicted that the prosecution would propose “a brand new scenario at the very last minute”.
• The “climax of [the] story” occurred in the Court of Appeal when it held:

  It must have been apparent to the defence throughout that the Crown would seek to show that Mr Anderson's story was still consistent with its basic theory. The two trip theory must have been a possible Crown contention from the outset.

  Mr Hunter believes the Court of Appeal is wrong, and that “issues of truth and guilt and innocence and justice don't feature”. He believes Watson should have been retried on the grounds that he was not given a proper opportunity to defend himself on “this crucial point”.

Complaint

[10] Donald Anderson complained to Television New Zealand Ltd, the broadcaster, that Murder on the Blade? breached broadcasting standards requiring the observance of good taste and decency, balance, accuracy and fairness. Mr Anderson was the water taxi driver who gave evidence at Watson’s trial of taking a lone man to a boat in the early hours of New Year’s Day 1998. In the words of the Court of Appeal:

Under extensive cross-examination, Mr Anderson ultimately effectively accepted that the yacht in question was “Blade”. The consequential inference was that the male person was [Watson].² 

[11] Before it summarises Mr Anderson’s complaint, the Authority sets out the relevant broadcasting standards.

Standards

[12] The relevant standards and guidelines in the Free-to-Air Television Code of Broadcasting Practice, against which TVNZ assessed Mr Anderson’s complaint, read:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Guideline 1a

Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification (see Appendix 1). The examples are not exhaustive.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guideline 4c

Factual programmes, and programmes shown which approach a topic from a particular or personal perspective (for example, authorial documentaries and those shown on access television,) may not be required to observe to the letter the requirements of standard 4.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Summary of Complaint

[13] Mr Anderson’s complaint to TVNZ, referral to the Authority, and further correspondence, was lengthy and detailed. The Authority summarises the aspects of the correspondence it considers relevant to its determination of the complaint.

[14] Under Standard 1 (good taste and decency), Mr Anderson complained that it was contrary to good taste and decency to make Scott Watson, a convicted double murderer, “look innocent” and to tell the viewer “that he is innocent”.

[15] Under the standards requiring balance, fairness and accuracy, Mr Anderson complained that the programme “contradicted due process by selective editing and misleadingly quoting portions of statements” to arrive at a conclusion contrary to that of many witnesses and contrary to that reached by the jury.

[16] In relation to his own statements and evidence, Mr Anderson complained that Mr Hunter:

… unfairly represent[ed] the content of over 7 hours in the witness stand and well in excess of 10 hours spent providing statements to the Police.

[17] He complained that the programme implied that he had lied in court that he had not seen the “mystery ketch”, when he had not lied. Mr Anderson said the double masted sailboat he was referring to in a statement to police read by an actor on the programme was the scow Alliance, and not a “mystery ketch”.

[18] In relation to Mr Hunter’s belief in the existence of a “mystery ketch”, Mr Anderson said Mr Hunter had “knowingly misled” viewers. According to Mr Anderson, the so-called “mystery ketch” described in statements quoted on Murder on the Blade? was later identified as the scow Alliance and discounted from the inquiry.

[19] Mr Anderson complained that Mr Hunter failed to disclose relationships between some of the witnesses who believe there is a “mystery ketch”. He said there was no physical evidence to substantiate the existence of a “mystery ketch”, and no sightings of such a ketch had been reported before New Year’s Eve.

[20] In relation to Guy Wallace’s contribution to the programme, Mr Anderson complained that Murder on the Blade? gave the impression that Mr Wallace had a “cogent recollection” of the events. According to Mr Anderson, Mr Wallace’s recollection of the location of the “mystery ketch” had changed six times. He noted that the programme did not include the fact that Mr Wallace claimed at the time to have seen the “mystery ketch” at the Nelson marina, but had forgotten its name by the time he got back to Picton. The sighting, Mr Anderson said, turned out to be an “Elvis sighting”. He wrote:

My point here is that while being aware of Guy Wallace’s unreliability as to his credible testimony, Mr Hunter knowingly used Guy in his programme and presented him as being credible to the viewer.

[21] Mr Anderson considered that the programme was distressing for the Hope and Smart families, and for witnesses, the police, and the jury. He considered that it was misleading and irresponsible for TVNZ to broadcast a programme which did not provide any new information that might prove Scott Watson innocent. He wrote:

Mr Hunter’s “opinions”, I believe should not be a base for a documentary helped funded by tax payers or topped up by funding from TVNZ.
…

The documentary Murder on the Blade? was nothing but a sensationalised, bigoted programme, lacking integrity, honesty and was disrespectful of the loss of the Hope and Smart families.

[22] Mr Anderson requested TVNZ to inform him who at TVNZ had agreed to the programme being broadcast, and who had authorised its funding. He requested that his name not be “released to any media” in relation to having submitted the complaint.

[23] In a lengthy attachment accompanying the complaint, Mr Anderson described “the detail of Mr Hunter’s incorrect generalisations and inaccuracies“ and disputed a number of statements made in the broadcast. In summary, Mr Anderson believes:

• The Court of Appeal ruled that many of the points highlighted by Mr Hunter as significant were not relevant enough to conclude that the judge had misdirected the jury or that there had been a miscarriage of justice. As the Court of Appeal has reviewed, and the Privy Council has dismissed, the information in Murder on the Blade?, the programme should not have been called a “documentary” and should not have been broadcast.
• Murder on the Blade? left out much relevant information about Scott Watson, for example: his violent past; his previous imprisonment for offences including stealing cars and possessing offensive weapons; his previous association with a violent skinhead gang; his swastika tattoo and other racist tattoos; and his attack on a prison chaplain and another inmate.
• Murder on the Blade? omitted significant information from the trial, for example: Watson’s talk of wanting to kill a woman and boasting that he knew how to dispose of a body; Watson having lied to police about the clothes he was wearing on New Year’s Eve; his clothes having never been recovered; Watson having lied and given inconsistent statements to police; missing items from Blade; scientific evidence that many of the scratch marks on the hatch cover were too large to have been made by a child; the fact that Watson’s sister Sandy, whose children were said on Murder on the Blade? to have made the scratch marks, was not called as a defence witness at the trial; and that Watson did not fill in his logbook with his movements between 1 and 4 January 1998.
• The police made a “diligent search” to find a ketch matching the description given by Mr Wallace. They put notices up in every marina in New Zealand, examined satellite images and flew planes out of Koromiko, Blenheim, Nelson and Wellington looking for vessels sailing out to sea. In addition, the Air Force and Interpol were asked to assist in locating any similar ketches. The police investigated and ruled irrelevant some 700 ketches throughout New Zealand.
• Contrary to Mr Hunter’s assertions, a number of witnesses would have agreed, had they been asked in court, that Scott Watson was the man in the dock and the man referred to in their statements.
• Hayden Morresey had added “substantial detail” to his recounting of the event involving the ketch compared with what he said in court.
• Contrary to Mr Hunter’s assertions, Guy Wallace did identify Scott Watson for the police.
• The re-enactment of the voyage from Cook Strait to Erie bay was misleading and “ultimately irrelevant” as to whether Watson disposed of the bodies of Ben and Olivia in Cook Strait.

[24] Mr Anderson requested TVNZ to broadcast corrections and “perhaps a show setting the record straight”.

Broadcaster's Response to the Complainant

[25] TVNZ advised the complainant that Murder on the Blade? was an authorial documentary which clearly fell into the category of programmes described in Guideline 4c of Standard 4. The programme’s status as an authorial documentary had been “clearly spelled out” at the beginning of the programme, TVNZ wrote. It cited the following:

• The studio presenter’s introduction that “The opinions contained in the programme are those of the presenter and author. They are one man’s view”.
• Mr Hunter’s early reinforcement that the programme was a personal perspective, when he said “I think that’s wrong” in relation to his statement that the case against Scott Watson was that he killed Ben Smart and Olivia Hope, and that he killed them on Blade.
• The superimposed title to the programme which read “Murder on the Blade? A Journalist’s View, by Keith Hunter”.

[26] TVNZ wrote that the “acceptance of informed personal viewpoints implicit in this guideline” was an important acknowledgement of the right of various perspectives to be heard and considered in the context of the free flow of information envisaged in s.14 (freedom of expression) of the New Zealand Bill of Rights Act 1990. It continued:

Guideline 4c has in the past enabled TVNZ to show documentaries such as John Pilger’s Palestine is Still the Issue which transparently presented one man’s perspective on the troubled situation in the Middle East. The guideline makes it possible for television to carry material similar to that provided by informed columnists who contribute to daily newspapers and periodicals. In the case of Murder on the Blade?, while you clearly do not agree with Mr Hunter’s conclusions, it must be accepted that it is the product of long and meticulous research the outcome of which deserved to be heard by the New Zealand public.

[27] Stating that Mr Anderson appeared to consider that because a conviction had been entered against Scott Watson, that should be an end to the matter, TVNZ noted historical criminal cases where research by journalists and writers had raised questions about the safety of convictions. It cited New Zealand’s “most famous case”, that of Arthur Allan Thomas who was convicted of the Crewe murders but later pardoned “after a searching inquiry prompted by the painstaking work of another journalist, Pat Booth of the Auckland Star.” TVNZ wrote:

It cannot be asserted that the dissemination of opinion based on thorough research is either undemocratic or contrary to the Codes of Broadcasting Standards.

[28] TVNZ advised Mr Anderson that it would not be responding “point by point” to his list of perceived flaws in the programme. First, it said its complaints committee was neither equipped nor qualified to relitigate a murder trial. Second, it said it would not be possible to carry out the research, as Mr Anderson had not referenced his material.

[29] In relation to Standard 1 (good taste and decency), TVNZ noted that the standard invariably referred to language and on-screen behaviour such as sex and nudity. It did not consider that the programme breached Standard 1, as it found no examples of language or behaviour which would have caused offence.

[30] Under Standard 4 (balance), TVNZ stated that Guideline 4c was “crucial” and that the programme was “presented transparently as an authorial documentary which is specifically allowed for under this guideline.” Further, it noted that Standard 4 allowed for balance to be achieved “within the period of current interest”. It said TVNZ had treated as major events what happened at Furneaux Lodge, the police enquiry, the trial, and the convictions, and that Murder on the Blade? provided an opportunity to present a significant but alternative view.

[31] Under Standard 5 (accuracy), TVNZ said it was not its role to rule on matters of fact in the context of a murder case in which the facts were in dispute. It stated:

The [complaints] committee could not identify any statement made in the programme which was demonstrably inaccurate and therefore found no breach of standard 5.

[32] Under Standard 6 (fairness), TVNZ stated that it was unclear who in Mr Anderson’s opinion had been treated unfairly in the programme. It wrote:

The programme fairly set out a reasoned and coherent challenge to the validity of the conviction of Scott Watson and in fairness made it quite clear that what was being put forward was a personal view from a journalist with extensive knowledge of the case and the accompanying paperwork and personalities.

[33] TVNZ did not uphold the complaint.

Referral to the Authority

[34] Dissatisfied with TVNZ’s decision, Mr Anderson referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[35] Mr Anderson repeated his contention that in his statements to police he had been describing the scow Alliance and not a “mystery ketch”. Mr Anderson considered that Mr Hunter had defamed him by stating that he had changed his story about there being a “mystery ketch” at Furneaux Lodge.

[36] In relation to other matters, Mr Anderson wrote:

• To the uninformed viewer the programme appeared coherent and factual, but it was inaccurate and misleading.
• A “sensationalised account of an event” should not be allowed to be screened as “individual expression” under Guideline 4c of Standard 4 if it was to the detriment of other obligations under the Broadcasting Act.
• Mr Hunter had “intentionally misdirected” the importance of various evidence presented at Scott Watson’s trial.

[37] Mr Anderson reiterated his view that it was inappropriate for TVNZ to broadcast a programme which stated that Scott Watson was innocent, knowing that Mr Hunter’s view “contradicted due process and a conviction of Watson”. The programme had presented no substantial evidence to prove Scott Watson was innocent: no “mystery ketch”; no cast-iron alibi; no evidence of police corruption or unfair trial.

[38] Mr Anderson repeated his view that it was inappropriate for Mr Hunter to use Guy Wallace as the “basis of a theory for television” due to the number of times Mr Wallace had changed his story.

Broadcaster’s Response to the Authority

[39] In its response to the Authority, TVNZ repeated that it was clear from the outset that the programme was a personal viewpoint. TVNZ wrote:

We note that in the world of literature, Lynley Hood has recently written a personal observation on the Christchurch Civic Crèche case, and we ask the Authority to also reflect on the work of Pat Booth and David Yallop in years past in their personal investigations into the Arthur Allan Thomas case.

[40] TVNZ disputed that the programme was “sensationalised”, noting that it was a “thoroughly referenced work, involving numerous interviews and a close study of available material.”

[41] TVNZ denied airing a programme which stated Scott Watson was innocent. It wrote:

[TVNZ] aired a programme in which Keith Hunter, a reputable film maker and journalist, said that after much research he was convinced of Scott Watson’s innocence. It was one man’s view.

[42] TVNZ wrote:

Aware as we are of the extent of Mr Hunter’s research on this programme we deny that he has “intentionally misled” anyone by producing a well-referenced documentary outlining his findings. We similarly deny that he manipulated “fact and fiction” to fit his view.

Keith Hunter’s Report

[43] TVNZ enclosed a lengthy report from Keith Hunter with its response to the Authority on the complainant’s referral. The Authority summarises those matters which it considers relevant to its determination of the broadcasting standards complaint.

[44] In relation to the aspect of Mr Anderson’s complaint that the broadcast unfairly and inaccurately represented his statements and evidence, Mr Hunter informed the Authority that he had decided not to approach Mr Anderson by telephone or by leaving a message because of “the bias apparent in his evidence and because many others who could have contributed meaningfully to the film simply refused on the grounds that they didn’t want ‘to get involved’.” He and his research assistant did, however, unsuccessfully attempt to locate Mr Anderson in person. In any event, Mr Hunter wrote, a “principal editorial ingredient in the film” was the verbatim evidence given at the time. Mr Hunter considered that the film presented “entirely faithfully” the central information Mr Anderson gave to the police and during the trial. He demonstrated to the Authority how he would have dealt with more of Mr Anderson’s evidence if he had had more time.

[45] In relation to Mr Anderson’s statements and evidence about a ketch, Mr Hunter provided the Authority with excerpts from Mr Anderson’s statements and evidence to support his view that Mr Anderson’s earlier references to a ketch were not references to the scow Alliance.

[46] Mr Hunter disputed a number of Mr Anderson’s assertions about Scott Watson’s background and character.

[47] In relation to Mr Anderson’s view that the re-enactment of the voyage from Cook Strait back to Erie bay was “misleading and ultimately irrelevant”, Mr Hunter wrote that the question was one of physics, not semantics. He disputed that the police had investigated and ruled irrelevant 700 ketches, writing:

I am aware of no source at all for the “700 ketches”. In my research I discovered no “diligent search” to find the ketch. I discovered the opposite – no diligent search to find the ketch.

[48] Mr Hunter concluded his report by asserting that Mr Anderson had a strong bias against Scott Watson.

Mr Anderson’s Further Comment

[49] In a further comment to the Authority, Mr Anderson observed that TVNZ had not responded to his questions about the funding and authorisation of the programme. Later, he requested that the Authority pursue answers to his questions.

[50] Mr Anderson wrote:

The place for contemplation of Scott Watson’s innocence or guilt was in the court room. While TVNZ say “it was the view of the committee that the acceptance of informed personal viewpoints implicit in the guideline represents an important acknowledgement of the right of various perspectives to be heard … “, I believe it was insensitive and inappropriate to air such a programme without a singular statement, as to why Scott Watson was found guilty from a prosecution angle unedited by Mr Hunter.

[51] Mr Anderson attached a number of newspaper articles, one of which referred to the Air Force using Orions and other air searches for a ketch. He stated that he was “astound[ed]” that Mr Hunter did not know that the police had investigated 700 ketches.

[52] Mr Anderson wrote that it was unfortunate that Mr Hunter had not contacted him. While he would not have wanted to participate in the programme, he said he would have talked to Mr Hunter and shown him his notes. Mr Anderson then outlined his involvement in the events following Ben and Olivia’s disappearance. Noting that he did not want the Smart, Hope or Watson families to have the matter brought up again in the media, Mr Anderson requested that the Authority treat his complaint “with discretion”.

TVNZ’s Response to Mr Anderson’s Further Comment

[53] TVNZ provided the Authority with a full response from Mr Hunter to Mr Anderson’s further comment. TVNZ said it “strenuously object[ed]” to the Authority suppressing Mr Anderson’s name. It considered name suppression would be unjust when the complaint was about an authorial documentary “presented unambiguously as the view of one journalist”.

Keith Hunter’s Response to Mr Anderson’s Further Comment

[54] Mr Hunter provided a 14-page response to Mr Anderson’s further comment, and a 16-page transcript of part of the defence cross-examination of Guy Wallace. He advised the Authority of the manner in which he would have treated the “story elements that Anderson promotes had I had the time on screen and had the task not proved too complicated for the narrative that began to take shape in the editing room”.

[55] According to Mr Hunter, two issues are relevant to Watson’s guilt:

• the alleged identification of Scott Watson by Guy Wallace; and
• the allegation that Scott Watson’s yacht was seen in Cook Strait late on the afternoon of New Year’s Day.

[56] Mr Hunter disputed that Mr Wallace had identified Scott Watson, writing:

Wallace at no time identified Watson other than from a photograph which, as shown in the film, confused not just [Wallace] but both of the other key witnesses to the identity of the man at the bar. Not the Crown, nor the judge nor the Court of Appeal ever claimed there was any identification other than by the blink photograph. I am aware of this because I have read the transcripts and the judgements. Anderson has not.

[57] Mr Hunter maintained his contention that it was impossible for the boat sighted in Cook Strait at 4.30pm on New Year’s Day to have been Blade. He cited various examples from Mr Anderson’s correspondence which he said “illustrate[d] the extent to which Anderson is blinded by his bias against Scott Watson”. He wrote that the complainant was unable to “address anything in this story with impartiality”.

Mr Anderson’s Final Comment

[58] In his final comment, Mr Anderson wrote that he did not consider Keith Hunter to be “in the same league” as authors such as Pat Booth and David Yallop (whose work helped gain a royal pardon for Arthur Allan Thomas) because:

… nothing suggested or represented in his programme gives grounds for Watson to be acquitted or even retried for that matter.

[59] Mr Anderson advised the Authority that he had not written his complaint because he was biased against Scott Watson. Rather, he wrote:

… Hunter had an actor read a very small portion of one of my statements, talking about a ketch. Then he passed the comment, that by the time of the trial, myself and another water taxi driver had changed our stories, implying we had intentionally lied.

[60] Mr Anderson continued:

It was Mr Hunter who chose a controversial angle for his programme. The burden of proof rests with him for his conclusions. His conclusions which I can’t stress enough, fly in the face of a Depositions Hearing, a Trial by Jury, the dismissal of an appeal to the Court of Appeal and an appeal to the Privy Council.

Even [Detective Inspector] Rob Pope stated on national television, Mr Hunter hasn’t discovered anything new. I would like to state the obvious that nothing in Keith Hunter’s programme proves Watson is innocent, no Mystery Ketch was found, no corruption was found and no hard evidence was produced to warrant an acquittal or a retrial, what’s more TVNZ knew all this before they aired the programme.

Authority's Determination

[61] The members of the Authority have:

• viewed a tape of the programme complained about and read the correspondence listed in the Appendix
• read a transcript of the programme complained about
• read the Court of Appeal’s judgment R v Watson.³

[62] The Authority determines the complaint without a formal hearing.

Preliminary matters

[63] Before it records its determination of the complaint, the Authority deals with three preliminary matters.

[64] First, the Authority received lengthy and detailed correspondence from the parties. In large part, the correspondence argued the parties’ views on the safety or otherwise of Scott Watson’s convictions. The Authority wishes to make it clear that it has no role in revisiting either the issues of fact that arose during the trial of Scott Watson or the arguments presented on the subsequent appeals. The sole issue for determination is whether Murder on the Blade? complied with the Free-to-Air Television Code of Broadcasting Practice. The Authority’s role is to determine the broadcasting standards complaint without re-litigating the issues that arose during the trial and appeals.

[65] Secondly, in his complaint to TVNZ, Mr Anderson requested that the broadcaster not release his name to the media in relation to having submitted the complaint. In his correspondence to the Authority, and noting that he did not want the Smart, Hope or Watson families to have the matters raised again in the media, Mr Anderson requested that the Authority treat his complaint “with discretion”. TVNZ strenuously opposed the Authority granting Mr Anderson name suppression.

[66] Section 15(1) of the Broadcasting Act 1989 requires the Authority to give public notice of its decisions. The Authority appreciates the possible distress to the Smart, Hope and Watson families, and to others involved in the trial, that may result from publication of this decision. However, it notes that it has no discretion not to publish the decision.

[67] The Authority declines to suppress the complainant’s name. The Authority is generally sympathetic to requests for name suppression when a complaint involves an alleged breach of the complainant’s privacy. No such breach is alleged here, and the Authority sees no valid reason to suppress the complainant’s name.

[68] Finally, in his complaint to TVNZ, Mr Anderson raised questions about funding and about who at TVNZ had authorised Murder on the Blade? to be broadcast. He subsequently asked the Authority to pursue answers to those questions. The Authority is unable to examine these issues, as matters of funding and programming decisions are not within its jurisdiction, which is limited to determining complaints about broadcasting standards.

Standard 4 – Balance

[69] The Authority deals first with the Standard 4 (balance) aspect of the complaint. In summary, the Authority considers that Mr Anderson’s essential concern was that Murder on the Blade? painted an unbalanced picture of the evidence presented at the trial. Mr Anderson was concerned that many aspects of the evidence relied on by Mr Hunter in presenting his theories had been taken out of context. He considered that the programme did not convey the fact that there was a significant body of evidence – not only from other witnesses, but also from Mr Hunter’s own participants – that significantly reduced the weight and impact of Mr Hunter’s theories. In short, Mr Anderson’s allegation is that Mr Hunter used information and evidence selectively – and thus misleadingly – in the interests of advancing his own views on the convictions. Accordingly, Mr Anderson alleges that the programme was unbalanced.

[70] In the preparation and presentation of news, current affairs and factual programmes, Standard 4 requires broadcasters to maintain standards consistent with the principle that:

… when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[71] Murder on the Blade? advanced the opinion of Keith Hunter, its writer and producer, that Scott Watson was wrongly convicted of murdering Ben Smart and Olivia Hope. To the extent that there are people who question the safety of Scott Watson’s convictions and have made their views public⁴, the Authority considers that the safety of Watson’s convictions, and thus the integrity of the criminal justice system, are “controversial issues of public importance” as contemplated by the standard. Murder on the Blade? therefore required balance.

[72] Guideline 4c gives further assistance in the interpretation of Standard 4 as it relates to authorial documentaries. The guideline states:

Factual programmes, and programmes shown which approach a topic from a particular or personal perspective (for example, authorial documentaries and those shown on access television), may not be required to observe to the letter the requirements of standard 4.

[73] The Authority agrees with TVNZ that Murder on the Blade? was “transparently” presented as an authorial documentary. It reaches that view for the following reasons:

• The studio presenter’s introduction made it clear that the programme was based on the “opinions” of Mr Hunter, the presenter and author. The studio presenter made it clear that the opinions were “one man’s view”.
• After the studio presenter’s introduction, and before the programme began, a superimposed title reading “Murder on the Blade? A Journalist’s View, by Keith Hunter” reinforced that the programme was Mr Hunter’s personal view.
• In the first few minutes of the programme, in relation to the Crown case that Watson killed Ben Hope and Olivia Smart and that he killed them on Blade, Mr Hunter said “I think that’s wrong”. This further reinforced early on that the programme was Mr Hunter’s personal perspective.
• Murder on the Blade? was clearly Mr Hunter’s opinion and the result of his personal research. Mr Hunter frequently used subjective language and made it clear to the viewer that he was giving his personal interpretation of the evidence.

[74] The Authority set out the requirements for balance in authorial documentaries in its decision on a complaint about the programme Palestine is Still the Issue (Decision No: 2003-028/030). The Authority wrote:

The Authority notes that the obligation on a broadcaster to provide balance is not derogated from by Guideline 4c, but rather allows a departure from strict compliance with the requirements of Standard 4. The guidelines to the standards aid the interpretation of broadcasting standards. They are tools to assist the viewer and the broadcaster in applying the standards to specific complaints, and assist the Authority when assessing a programme against the relevant broadcasting standard.

While the Authority acknowledges that there is an overriding obligation to ensure balance, absolute neutrality on every issue is not achievable, as such a canon is not consistent with fundamental democratic principles, nor can it be achieved in any simple mathematical sense. It is the practical reality of broadcasting that programmes cannot be perfectly balanced. Guideline 4c offers broadcasters a facility to broadcast authorial documentaries in the public interest. Without such a facility, every current affairs programme would have to be mathematically balanced, and every perspective covered. However, to the extent that it does allow the broadcast of a particular perspective, the requirements of Standard 4 apply when opposing viewpoints are represented.

As noted above, the Authority recognised that the programme was not "mathematically" balanced, but it is satisfied that adequate opportunity was given to the presentation of significant viewpoints. The Authority accepts that the purpose of the programme’s introduction was to make clear Pilger’s advocacy style of journalism and to convey to viewers that it was a personal perspective involving the Pilger style of "call to action" which usually evokes strong support or criticism. The introduction clearly explained that the programme was a "personal perspective" which Guideline 4c states "may not be required to observe to the letter the requirement of standard 4". In that respect Guideline 4c allows the Authority a degree of discretion when determining alleged breaches of Standard 4.

[75] Applying this reasoning to Murder on the Blade?, the Authority notes that although it was an authorial documentary, it still required a degree of balance. However, Guideline 4c suggests that departure from strict compliance with the requirements of Standard 4 is permissible when considering programmes of this nature.

[76] The Authority is divided as to whether Murder on the Blade? adequately presented significant alternative points of view so as to comply with Standard 4, taking into consideration Guideline 4c. A majority of the Authority (Tapu Misa and Paul France) considers that balance to the extent required under Guideline 4c was achieved. A minority (Joanne Morris) disagrees.

Majority (Ms Misa and Mr France)

[77] The majority view is that while the programme was specifically aimed at identifying and presenting arguments opposed to Scott Watson’s convictions, the argument that it breached the balance standard does not succeed, for four reasons.

[78] First, the perspective from which the programme was made was clearly identified in the introduction, where it was stated:

The documentary that follows, while not dealing with all the evidence produced at the long court hearing, challenges the basic evidence the police and Crown relied on to convict Scott Watson

[79] The introduction also specifically noted that in their unsuccessful appeal to the Court of Appeal, Watson’s lawyers avoided claiming that a guilty verdict could not have been supported having regard to all the evidence.

[80] The majority considers that this introduction was a clear statement that the programme could not deal with all of the evidence heard by the jury at the original trial, but that key planks of that evidence would be challenged. Furthermore, in noting that the ground of appeal alleging verdicts contrary to the weight of evidence was not pursued, the programme acknowledged that Watson’s legal counsel accepted that the jury had been given sufficient evidence based on which it could reasonably and rationally have arrived at the guilty verdict.

[81] Second, the majority considers that the programme, while primarily intending to advance arguments against the conviction, in doing so also presented key elements of the prosecution’s case. While the programme generally then proceeded to attempt to refute these Crown arguments, in the view of the majority, the viewer was nevertheless left with a good sense of the basic tenor of the prosecution case.

[82] In this regard, there is nothing to suggest that the programme misrepresented the Crown case. While it is acknowledged that the programme did not include every important aspect of the Crown case on which the jury may have relied in convicting Watson, the viewer was nevertheless left with a clear understanding of much of the information that could justify the verdict.

[83] The majority considers that in the context of an authorial documentary it is important that there be a clear acknowledgement that there are other points of view. This does not mean, however, that it is necessary for an authorial documentary to actively argue the case for those other points of view. The majority accepts that Murder on the Blade? did not actively promote any positive arguments supporting Scott Watson’s conviction. However, the arguments the programme advanced were placed in context both by the introduction to the programme – where it was made clear not only that the programme would promote a particular perspective but that a different view of the evidence had been taken by the jury and the Court of Appeal – and by the presentation of aspects of the prosecution case.

[84] It is these factors above that, in the view of the majority, mean viewers were given sufficient information to view the programme in context and thus, in accordance with the test adopted by the Authority in the Palestine is Still the Issue decision (referred to above), “the Authority recognised that the programme was not "mathematically" balanced, but it is satisfied that adequate opportunity was given to the presentation of significant viewpoints” (see paragraph 65 of the Palestine decision).

[85] Third, TVNZ noted that it had treated as “major events” the investigation, trial and convictions of Scott Watson, and that in the context of this extensive previous coverage, Mr Hunter’s programme could fairly be seen as an “opportunity to present a significant but alternative view to a ‘controversial issue of public importance’”.

[86] The majority accepts the extensive media coverage as being a contributing factor to the overall balance of the item. The disappearance of Ben and Olivia, the subsequent police investigation, the trial, and the ultimate convictions of Scott Watson, were major news stories in 1998 and 1999 in New Zealand. In these circumstances, the majority concludes that the New Zealand public is likely to be aware of the existence of additional facts and information that present a markedly different perspective on Scott Watson’s convictions than the view presented by the programme. While it is now a number of years since Watson’s trial and appeal, the attention the case has continued to receive over the years continues to reinforce the background to his conviction.

[87] A fourth factor influencing the majority in its decision not to uphold the balance aspect of the complaint is s.14 of the New Zealand Bill of Rights Act 1990, protecting freedom of expression. The majority considers that Mr Hunter was free to express his opinion that Scott Watson’s convictions are unsafe, and that Mr Hunter’s is just one further view on an issue about which much has already been written and debated. While some may consider that Mr Hunter’s arguments are not persuasive when considered in the context of the totality of the evidence against Scott Watson, it is nevertheless Mr Hunter’s right to hold and express such views. In the context of the enormous amount of attention that the Scott Watson matter has received over the years in New Zealand, the majority sees Mr Hunter’s views, irrespective of their merits, as a legitimate contribution to the wider public debate, protected by s.14 of the New Zealand Bill of Rights Act.

[88] For the above reasons, taking into account the permissible departure from a strict application of Standard 4 to authorial documentaries, a majority of the Authority considers it may appropriately exercise its discretion to find that the programme was balanced within the meaning of Standard 4.
[89] It therefore does not uphold the complaint that Murder on the Blade? breached Standard 4 (balance).

Minority (Ms Morris)

[90] A minority of the Authority upholds the complaint that Murder on the Blade? breached Standard 4 (balance). The minority considers that the programme was unashamedly targeted, and the evidence selectively presented, to such an extent as to make the programme unbalanced, even in light of the discretion afforded to the Authority by Guideline 4c to Standard 4.

[91] The minority draws attention to Guideline 4b to Standard 4, which reads:

No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.

[92] The minority considers that the extent to which Murder on the Blade? selectively portrayed the evidence and the arguments on appeal was such that balance was not able to be achieved through either the minimal amount of context provided in the programme itself – that is, the introduction setting the scene in which it was noted that Scott Watson was serving a jail sentence and that appeals had been unsuccessful – or by the amount of information that was in the public eye through previous media coverage. The minority is of the view that the way in which the programme dealt with the evidential and legal issues went beyond simply promoting a theory that ran counter to the conclusions drawn by jurors and judges. The programme instead portrayed a heavily unbalanced and at times overly simplistic view of the evidence, the trial process, and the arguments on appeal. In particular, arguments of questionable legal merit were attributed almost overriding significance, evidence in support of innocence was accepted uncritically, and evidence tending to support guilt was simply not referred to.

[93] The minority considers that the context provided in the programme itself did not counteract the effect of such an unbalanced portrayal of the issues. It does not agree that by simply mentioning the fact of Scott Watson’s conviction and unsuccessful appeals before the programme screened, the presenter’s introduction implied that there were counterbalancing arguments of equal or greater merit sufficient to convince judge and jury. In fact almost the opposite is the case, in the minority’s view: in referring to the conviction and unsuccessful appeals, the implication was not that there existed compelling arguments in favour of guilt, but instead that a gross miscarriage of justice had occurred, for the reasons to be outlined in the programme.

[94] The approach taken by the programme, and thus the approach of the minority to it, is to be contrasted to the approach taken in the documentary Palestine is Still the Issue (referred to above) and the Authority’s approach to that programme. In the Palestine case, the Authority found that significant opportunity had been given to present a pro-Israeli government point of view; the documentary included the pro-Israeli views of a senior adviser to the Israeli government, a journalist and writer who lived in Israel, and a Jewish settler, as well as the views of other Israelis who were critical of their government’s position. The Authority concluded that reasonable efforts had been made to canvass a range of views on the pertinent issues.

[95] In the view of the minority, Murder on the Blade? is in direct contrast to this; no effort at all was made to promote any view other than that of the presenter, and the presentation of the information appeared to have the sole aim of supporting this position. No balancing views were offered, and this in the minority’s view distinguishes this case from the Palestine case.

[96] The minority does accept that there is a large amount of information in the public domain presenting significantly different – or even fundamentally opposed – views to those expressed in Murder on the Blade? The minority accepts that, in an appropriate case, the existence of such information may well be a weighty factor – in light of the discretion afforded the Authority by guideline 4c of the Television Code of Broadcasting Practice – supporting a finding that a broadcaster complied with the balance standard. But it does not consider that this is such a case, for the following reasons.

[97] Scott Watson was convicted in 1999. His appeal was rejected by the Court of Appeal in 2000. Since the rejection of his appeal, the extent of media coverage has greatly diminished, and although there has since been the unsuccessful application for leave to appeal to the Privy Council (November 2003) and the petition presented to Parliament (as recently as June 2004) much of the detail surrounding the arguments made by the prosecution at the trial would, in the view of the minority, either never have been known, or no longer be recalled by the general public. In relation to the arguments on appeal, the minority considers it doubtful whether these would ever have been considered in detail by the lay public. In this context, the minority considers it possible, or even likely, that a reasonable person viewing Murder on the Blade? might well fail to appreciate the existence of a considerable body of evidence and argument painting a very different picture from that in the documentary.

[98] The minority stresses, for the avoidance of doubt, that challenging an institution of government – in this case the criminal justice system – could not of itself ever constitute a breach of broadcasting standards; the right to so criticise is a fundamental philosophy behind the right to freedom of expression protected in section 14 of the New Zealand Bill of Rights Act.

[99] In coming to its view the minority has carefully considered section 14. Nevertheless, it considers that its view – that the programme breached Standard 4 of the Code of Broadcasting Practice – amounts to a reasonable and justifiable limitation on the right of freedom of expression. The broadcasting codes of practice by their very nature necessarily limit that freedom. In the view of the minority, the lack of balance in this programme was so manifest as to bring it within that class of broadcasts at which Standard 4 is clearly directed. To find that a programme so clearly unbalanced nevertheless complied with broadcasting standards requiring balance, solely by virtue of the Bill of Rights Act would, in the minority’s view, effectively remove any effective application of the codes of broadcasting practice.

[100] Accordingly, for the reasons outlined above, a minority of the Authority upholds this aspect of the complaint.

Standard 6 – Fairness

[101] The Authority deals now with the aspect of the complaint that Murder on the Blade? breached Standard 6 (fairness).

[102] Mr Anderson framed much of his complaint as an allegation that Murder on the Blade? was “unfair”. For example, he complained that the programme:

• unfairly gave the impression that Guy Wallace had a cogent recollection of the events
• unfairly made it appear that there had been a “large number of sightings of a mystery ketch”
• unfairly represented witnesses’ evidence
• was unfair and distressing for the Hope and Smart families, and for witnesses, the police, and the jury.

[103] The Authority notes that Standard 6 (fairness) is concerned with broadcasters dealing justly and fairly with persons or organisations who take part in or are referred to in a programme. The requirement that issues be dealt with “fairly” is part of the requirement for balance in Standard 4 and the requirement for accuracy in Standard 5. Mr Anderson’s complaints as described above reflect his concern that issues rather than people were treated unfairly in the programme. These issues, and the fairness with which they were dealt, are more appropriately dealt with under consideration of Standards 4 and 5, relating to balance and accuracy.

[104] Mr Anderson did however make further complaints alleging unfairness to people referred to in the programme, in contravention of Standard 6. A major source of concern to him was that his own statements and evidence were presented in such a way as to “unfairly represent the content of over seven hours in the witness stand and well in excess of 10 hours spent providing statements to the police”. The Authority addresses this issue below.

[105] Mr Anderson also alleged that other witnesses were not dealt with justly and fairly, although he did not provide details to support these general allegations. Although the Authority notes that all witnesses referred to in the programme were entitled to be dealt with justly and fairly, in the absence of specific information from the complainant particularising his concerns, it declines to determine this aspect of the complaint. To determine whether Murder on the Blade? dealt justly and fairly with all the witnesses named in the programme would require an examination of the entire police case and the trial process. That is not a task that the Authority can – or should – perform in the absence of specific concerns from the complainant.

Treatment of Mr Anderson in the programme

[106] Under fairness, the Authority deals with whether Murder on the Blade? dealt justly and fairly with Mr Anderson as a person referred to in the programme.

[107] The Authority has examined the programme in detail, and the excerpts from Mr Anderson’s police statements and evidence which Mr Hunter provided. The Authority notes that Mr Anderson has not contested the accuracy or validity of the information provided to it by Mr Hunter.

[108] The Authority notes that Mr Hunter contended that a number of people told police they had seen a ketch of the description Guy Wallace originally gave to police. According to Mr Hunter, the complainant was one of those people. In this part of the programme, Mr Anderson was referred to as “Taxi Driver 1”, and an excerpt from his statement to police on 8 January 1998 was read by an actor as follows:

I can vaguely remember the double masted sailing boat. It was anchored on its own. I can recall going around the back of the boat and seeing a lot of gear on the stern.

[109] The Authority notes that, after reading an excerpt of a statement given by another of the water taxi drivers which referred to having seen a boat with “5 or 6 round portholes with white trim around the edge” and a “blue line”, Mr Hunter stated:

It could only have been the ketch Guy Wallace went alongside, but Wallace didn't change his view. By the time of the trial both of these men did. Both would tell the High Court that they'd not seen the ketch at all.

[110] Mr Anderson has complained that the programme implied that he intentionally lied in court when he did not. According to Mr Anderson, the double masted sailing boat he was referring to in his statement on 8 January was the scow Alliance, which at that stage had not been named. Mr Anderson considered it defamatory for Mr Hunter to state that by the time of the trial he had changed his story about there being a mystery ketch at Furneaux Lodge.

[111] Mr Hunter advised the Authority that the programme presented “entirely faithfully” the central information Mr Anderson gave to the police and during the trial. Mr Hunter said Mr Anderson specifically ruled out the Alliance as the “mystery ketch”, and he demonstrated this contention to the Authority in supporting documentation.

[112] Having reviewed the documentation, the Authority accepts that “the ketch” to which Mr Anderson referred in his police statement quoted on the programme was not the Alliance because, in a statement several days later when referring to the same double masted sailing boat, he distinguished it from a “scow”. Mr Hunter advised the Authority, and Mr Anderson did not dispute, that the only scow moored at Furneaux that night was the Alliance.

[113] The Authority notes that when he was being cross examined by the defence at the trial, the trial judge asked Mr Anderson if he was “ruling out the Alliance [as the double masted sailing boat]” when he gave his statement to police on 8 January. Mr Anderson replied:

I don’t believe I was ruling it out Your Honour. I believe I was generally mistaken about the direction I came into to drop the passengers off to the “Alliance” because of the fact that the “Alliance” had swung around on its mooring.

[114] The Authority therefore concludes that Mr Anderson originally told the police he had seen “the double masted sailing boat” they were looking for, and that by the time of the trial he had “changed his view”.

[115] The question for the Authority is whether the manner in which this information was presented in Murder on the Blade? was fair to Mr Anderson. That is, was Murder on the Blade? fair to Mr Anderson when Mr Hunter stated:

It could only have been the ketch Guy Wallace went alongside, but Wallace didn't change his view. By the time of the trial both of these men did. Both would tell the High Court that they'd not seen the ketch at all.

[116] As to whether the double-masted sailing boat to which Mr Anderson referred in his statement on 8 January 1998 was a “mystery ketch” which has not been located, the Authority does not surmise. Nonetheless, it concludes that Mr Hunter did not treat Mr Anderson unfairly. It concludes that the programme fairly portrayed Mr Anderson’s statements and evidence in court regarding whether he had seen “a ketch”. The statements over time do demonstrate a change in position from Mr Anderson, although for the avoidance of doubt the Authority in coming to this conclusion is in no way implying bad faith on his part.

[117] The Authority does not accept that the programme implied that Mr Anderson had “intentionally lied” at the trial. In its view, there could be legitimate reasons for his evidence at the trial being different, and the programme left open that possibility.

[118] Therefore, the Authority does not uphold the complaint that the broadcast was unfair to Mr Anderson.

Standard 5 – Accuracy

[119] Standard 5 requires news, current affairs and other factual programmes to be truthful and accurate on points of fact, and impartial and objective at all times.

[120] In his complaint to TVNZ, Mr Anderson set out a large number of matters in relation to which he alleges that Mr Hunter was inaccurate in his portrayal of the evidence against Scott Watson. The Authority accepts that the portrayal of the evidence was incomplete, but inevitably so, as a single 90-minute programme could not hope to comprehensively summarise the mass of evidence presented at the trial. Furthermore, it is of the view that an incomplete portrayal of evidence presented during a long and complex trial does not necessarily equate to “inaccuracy”.

[121] As already noted, the Authority accepts that the programme was a reflection of “one man’s view” of the evidence. It is clear that the view espoused by Mr Hunter does not accord with the view of the evidence taken by the jury, or the Court of Appeal. But that is not the issue; Mr Hunter was entitled to have – and to express – a view that differed from that of the various legal institutions. His views cannot be said to be “issues of fact” for the purposes of Standard 5. It is instead for the Authority to determine whether the programme stated as fact things that were not in fact true.

[122] In the Authority’s view, Mr Anderson’s concerns regarding the “accuracy” of the programme instead reflect his belief that Mr Hunter’s views gave a misleading account of the strength of the case against Scott Watson. This is also at the heart of the balance complaint dealt with earlier. The Authority does not consider that Mr Anderson has pointed to material facts in relation to which Mr Hunter presented information that was simply untrue, as opposed to an interpretation with which Mr Anderson disagreed.

[123] It is apparent from the programme itself, as well as from TVNZ’s and Mr Hunter’s response to the complaint, that Murder on the Blade? was extensively researched. Much of the material was drawn directly from either witnesses’ statements to the police or the transcript of the trial. Given the volume of material covered in the programme, the Authority would be loath to assert that the programme was completely accurate in every respect. It is nevertheless confident in finding that the programme, based as it was on referenced primary source material, was in an overall sense accurate on material points of fact.

[124] As Mr Anderson has not brought to the attention of the Authority any factual – as opposed to interpretative – deficiencies in the programme, the Authority does not uphold that aspect of the complaint alleging that the programme was inaccurate.

Standard 1 – Good taste and decency

[125] Standard 1 requires broadcasters, in the preparation and presentation of programmes, to maintain standards consistent with the observance of good taste and decency. Guideline 1a requires broadcasters to take into consideration “current norms of decency and taste in language and behaviour”, bearing in mind the context of the language and behaviour.

[126] Mr Anderson complained that it was contrary to good taste and decency for TVNZ to broadcast a programme which he said made Scott Watson, a convicted double murderer, “look innocent” and where the viewer was told “that he is innocent”. He reiterated that complaint in his referral to the Authority, adding that TVNZ knew that the programme “contradicted due process and a conviction of Watson.”

[127] In its response to the Authority, the broadcaster noted that it was Mr Hunter, not TVNZ, who was convinced that Watson is innocent, and that he formed that view “after much research”. TVNZ declined to uphold the Standard 1 complaint, noting that the standard is invariably invoked in relation to language and on-screen behaviour such as sex and nudity.

[128] In determining the aspect of the complaint that the broadcast breached Standard 1, the question for the Authority is whether it threatens standards of good taste and decency to broadcast a programme which challenges evidence leading to an accused being convicted of murder, and so which challenges the jury’s verdict.

[129] The Authority acknowledges that some people find programmes which re-examine murder trials unpleasant. However, it considers that such programmes do not threaten “current norms of decency and taste in language and behaviour”.

[130] The Authority can find nothing more in the way of language or behaviour in Murder on the Blade? which threatens current norms of good taste and decency. Therefore it does not uphold the complaint that Murder on the Blade? breached Standard 1.

For the above reasons, a majority of the Authority does not uphold the aspect of the complaint that Murder on the Blade? breached Standard 4 (balance) of the Free-to-Air Television Code of Broadcasting Practice. The Authority does not uphold any other aspect of the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
15 October 2004

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1. Donald Anderson’s Formal Complaint to Television New Zealand Ltd – 24 November 2003
2. TVNZ’s Response to the Formal Complaint – 11 December 2003
3. Mr Anderson’s Referral to the Authority – received 16 January 2004
4. TVNZ’s Response to the Authority (including Keith Hunter’s report) – 25 February 2004
5. Mr Anderson’s Further Comment (and attachments) – 18 March 2004
6. TVNZ’s Response to Mr Anderson’s Further Comment (including Keith Hunter’s response and attachments) – 14 April 2004
7. Mr Anderson’s Final Comment – 22 April 2004
8. TVNZ’s Final Comment – 28 April 2004

¹One of the water taxi drivers played by an actor on Murder on the Blade? – “Taxi Driver 1” – was Donald Anderson, the complainant.

²R v Watson, unreported, Court of Appeal, CA384/99 and CA507/99, 8 May 2000, page 22

³Court of Appeal, CA384/99 and CA507/99, 8 May 2000

⁴The Authority notes, for example, that two books have been published which argue that Scott Watson is innocent (The Marlborough Mystery by Mike Kalaugher, and Ben & Olivia: What really happened? by Jayson Rhodes and Ian Wishart). The Authority further notes that in June this year a petition was presented to Parliament calling for a commission of inquiry to “thoroughly investigate all the evidence presented at the Scott Watson trial to determine whether or not ‘reasonable doubt’ did exist”.