BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Investigator Special: The Case Against Robin Bain – documentary maker Bryan Bruce gave his perspective on the case against Robin Bain, by re-examining the evidence against Robin given at David Bain’s retrial – concluded that there was no forensic evidence connecting Robin with the murders – also investigated whether the complainant, who was a “surprise” witness at the retrial, had given misleading evidence – allegedly in breach of accuracy and fairness standards

Findings
Standard 6 (fairness) – complainant was not given a fair and reasonable opportunity to respond to the issues raised about his testimony – unfair – upheld

Standard 5 (accuracy) – alleged inaccuracies relate to implication in the programme that the complainant gave misleading evidence – Authority not in a position to determine whether the programme was inaccurate in this respect – decline to determine under section 11(b) of the Broadcasting Act 1989

Orders
Section 16(1) – costs to complainant $1,500

This headnote does not form part of the decision.

Broadcast

[1]   A documentary, titled The Investigator: The Case Against Robin Bain, was broadcast on TV One at 9.30pm on Tuesday 6 July 2010. The documentary maker, Bryan Bruce, gave his perspective on the case against Robin Bain, re-examining the evidence against Robin given at David Bain’s retrial. He introduced the programme as follows:

In 1995 a Dunedin jury found David Bain guilty of murdering his family. But after serving 13 years he faced a second jury who came to the opposite conclusion, that he was not guilty. So what are we to think of Robin Bain now? The Judges in both trials put the question to the jury: was it Robin or was it David? But I’m not sure that was the most helpful formulation of the issue, because only David was on trial. The question it seems to me should have been, what was the evidence that David did it? And the answer according to the second jury was: not enough, not guilty.

Robin of course will never stand trial. Yet in the court of public opinion there are many who think that he must have done it. So I decided to review the evidence at the retrial solely with the case against Robin in mind. To see what, if anything, might persuade a jury that he murdered his family and took his own life. What you are about to see is my personal opinion, based on my investigation of the case...

[2]   Mr Bruce explained that he made the programme after studying the court transcripts and footage of the trial because he was interested in determining why the jury in the retrial delivered the opposite result of David Bain’s first trial in 1995. He said, “No one comes to this case with a completely open mind, but having said that, I’m a professional and I’m evidence-driven and not on any particular crusade. I started by asking the question: What is the evidence that Robin Bain did it?”

[3]   Mr Bruce first discussed his view that there was no forensic evidence linking Robin Bain to the murders. He then claimed to have uncovered new information in relation to the testimony of the defence’s surprise witness at the retrial, a photocopier salesman, Daryl Young, who gave evidence about his interaction with Robin Bain as principal of Taieri Beach School.

[4]   Mr Bruce began by saying that “one man told a story about Robin to the jury that I have real doubts about”. Parts of the court footage from the retrial were shown, in which Mr Young described his visits to the school and his interaction with Robin when he went to find him at the Taieri Mouth camping ground to finalise paperwork for the sale of a photocopier.

[5]   Mr Bruce challenged his account using a photograph of Robin Bain’s van. He also interviewed two other people, a former employee at the school, and another photocopier salesman, with regard to Mr Young’s evidence about visiting the school and selling the photocopier to Robin. The other salesman claimed that he had sold the photocopier, not Mr Young, and that he was not aware of Mr Young visiting the school as many times as he said he did. The teacher answered Mr Bruce’s questions about the day that Mr Young claimed to have visited the school, and her answers contradicted Mr Young’s evidence. Following his interview with the teacher, Mr Bruce said, “The morning after my interview with [the teacher] I decided to call Daryl Young in the hope that he would be willing to meet with me and discuss his court testimony.”

[6]   Mr Bruce was then shown sitting in a car phoning Mr Young, whose responses could be heard on the phone. The following exchange took place:

Young:         Hello.

Bruce:          Good morning, can I speak with Daryl Young please?

Young:          Speaking.

Bruce:          Daryl it’s Bryan Bruce speaking here. I make a programme called The Investigator it
                   screens on TV One. Am I  speaking with the Daryl Young that gave evidence at the
                   Bain trial?

Young:          Um yeah, that’s right

Bruce:          Okay. Look I’m working on an episode about Robin Bain, and I’ve got some documents
                   and photographs that appear to contradict the evidence that you gave in court and I
                   wondered if I could show them to you and have a discussion with you about it.

Young:         Oh look I’ve moved on mate.

Bruce:         Well this is pretty serious. I mean they do suggest that what you said in court wasn’t
                   accurate.

Young:         Oh I don’t, I don’t know about that mate.

Bruce:         You don’t know about it? Do you know a Mr [name of photocopier salesman]?

Young:         I know [him], yeah.

Bruce:         Yeah? Well he says that he sold the photocopier to the school.

Young:         Well that’s inaccurate. It went through in his name, but I sold it.

[7]   Mr Bruce concluded the segment by saying:

Shortly after this Daryl Young made it very clear that he didn’t want to talk to me and hung up. Which is a pity, because now we have two versions of the events, and I can’t tell you who’s right, and who’s wrong. It’s certainly a matter which in my opinion needs further investigation as to why the jury did not get to hear from fellow teacher [name] or copier salesman [name].

Complaint

[8]   Daryl Young made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached standards relating to balance, accuracy and fairness.

[9]   Mr Young considered that, “The promotion of the programme in advertisements and on the news on the day of screening was predicated on the claim that explosive new evidence was to be revealed which would have the effect of reopening the whole case.” He argued that “the manner in which Mr Bruce dealt with [him] was unfair and unbalanced and the resulting claims were worse than inaccurate; they were false, deceptive and misleading.”

[10]   The complainant was of the view that Mr Bruce had “ambushed” him, by phoning him at approximately 8.30am on a Saturday (he believed on Queen’s Birthday weekend), while he was at home with his children. He maintained that he was not informed that Mr Bruce was recording the phone call or that Mr Bruce was being filmed phoning him. He said that he had “no prior notice of his call” and had not heard of Mr Bruce so he could not establish his credentials. Further, he maintained that he had never been shown any of the documents relating to the photocopier sales to the school.

[11]   Mr Young said that “no attempt was made to follow up Mr Bruce’s ambush phone call with a second call or a written request, despite a period of approximately five weeks elapsing between the date of Mr Bruce’s call to me and the screening of the programme”. He argued that both TVNZ and Mr Bruce had “[taken] advantage of the occasion and used the ambush phone call to me to create a sensational claim that is not true.” He considered that Mr Bruce must have known that by “hitting an ordinary New Zealander with zero experience of television... [he would] get unnerved and frightened...  especially with an accusation as grave as that put to [him]”.

[12]   The complainant contended that the programme was unbalanced because “it is quite possible, indeed an industry norm, that the person whose name appears on a sales document may not be the same person who has made previous, or indeed subsequent sales calls”. He said that, while he was not questioning the document shown in the programme, “that document in itself is not evidence that I did not have the meetings with Robin Bain that I described in my evidence”. He considered that “the fact that there could have been (and evidently was) more than one sales call made to Robin Bain by U-Bix staff during the early 1990s was clearly, and arguably deliberately, overlooked by TVNZ and Mr Bruce in producing the programme.” He said that proper research, or discussion with him, “would have made this very clear”.

[13]   Mr Young considered that a prominent part of the segment regarding his evidence focused on Robin Bain’s van and was “promulgated as further proof that my evidence was false”. He said that this allegation was never put to him, and that having reviewed his evidence he noticed that “all [I] said in evidence was that the van shown to me in photos at the trial looked ‘similar’ to the one I found Mr Bain in”. Mr Young said, “I have now reviewed the evidence I gave at trial and can categorically state that everything I said in my evidence was true to the best of my knowledge and belief.”

[14]   The complainant stated that the programme had caused him and his family “a great deal of distress and damage”. He said that he was devastated that he had been portrayed as giving untrue evidence without having an opportunity to defend himself. He considered that the programme falsely portrayed him as “dodgy, unreliable, and by explicit implication, a perjurer”. Mr Young requested an immediate apology and retraction, by both TVNZ and Mr Bruce, to be broadcast on One News.

Standards

[15]   TVNZ assessed the complaint under Standards 4, 5 and 6 and guidelines 4b and 5a of the Free-to-Air Television Code of Broadcasting Practice. They provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guideline 4b

The assessment of whether a reasonable range of views has been presented takes account of some or all of the following:

• the programme introduction;
• whether the programme approaches a topic from a particular perspective (e.g. authorial documentaries, public access and advocacy programmes);
• whether viewers could reasonably be expected to be aware of views expressed in other coverage.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Guideline 5a

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[16]   TVNZ considered each of the standards raised by the complainant.

Standard 4 (controversial issues)

[17]   Looking first at Standard 4, TVNZ noted that the Authority had previously defined a controversial issue of public importance as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public” (e.g. Powell and TVWorks¹). It referred to a previous decision by the Authority,² in which it found that two items discussing suppressed evidence from David Bain’s retrial did not discuss a controversial issue of public importance to which Standard 4 applied.

[18]   TVNZ argued that, while there was some controversy surrounding apparent inconsistencies between Mr Young’s evidence and documents and accounts obtained elsewhere, “it relates to the evidence of one witness in the trial of one individual who cannot be retried”.

[19]   TVNZ concluded that Standard 4 did not apply on this occasion. However, it considered that, even if “the issue of the testimony of the retrial defence’s surprise witness, a photocopier salesman,” was a controversial issue of public importance, the programme was an authorial documentary, and significant points of view had been presented within the period of current interest.

[20]   TVNZ argued that the programme was clearly authorial and therefore did not require the same degree of balance as other programmes (guideline 4b). The broadcaster noted that Mr Bruce emphasised at the beginning of the programme that “what you are about to see is my personal opinion, based on my investigation of the case”. He couched all of his conclusions in the programme in terms of his opinion, TVNZ said.

[21]   In terms of presenting Mr Young’s perspective, TVNZ emphasised that Mr Bruce had wanted to meet with Mr Young to discuss the information he had obtained, but Mr Young declined. However, it noted that the programme included a recording of the phone conversation, including Mr Young’s reaction to the other salesman’s claim that he sold the photocopier. Mr Young said, “It went through in his name but I sold it.” Mr Young made it clear that he did not wish to speak to Mr Bruce, TVNZ said, and no one other than Mr Young could have answered Mr Bruce’s questions.

[22]   The broadcaster emphasised that, having presented Mr Young’s evidence, the sales documentation, the conflicting accounts of the other interviewees, and Mr Young’s response to them, Mr Bruce “did not then try to reconcile those various accounts”.

[23]   TVNZ also contended that significant points of view on the documentary had been presented within the period of current interest, in other programmes. It argued that, in addition to the inclusion of Mr Young’s response in the programme, his perspective was strongly presented by him, or on his behalf, in other programmes. It noted that in a Close Up item the following night on 7 July, Michael Reed QC, the defence counsel, had stated in relation to the documentary, “it is absolute rubbish, it’s been proved to be wrong... Mr Young did do what he says and he’s corroborated by other employees at the time. It’s corroborated by other witnesses at the trial. The family are talking nonsense when they suggest there was nothing wrong with Robin Bain...”

[24]   TVNZ noted that Mr Reed QC also referred to a TV3 news item earlier in the evening, saying that the documentary “caused great concern to Mr Young which is... if people have been watching TV3 tonight you will have seen Mr Young explain the whole position and he’s an entirely truthful witness and there is no basis whatsoever for the main point of the promos, for the programme saying that they’ve got ‘new evidence’. It’s rubbish. There is no new evidence.” The following segment was contained in the TV3 news item:

Young:         I possibly went earlier... it was a separate sales call altogether and a separate sale...

Reporter:     A copy of the sales document produced in the documentary last night showed another
                  man, [name], had completed the sale, not Young. But Young says it’s possible [the
                  other salesman] sold an upgraded copier to Robin at a later date.

Young:         It’s been two, two visits you know. I did a visit in ’91, [the other salesman] most likely
                  did one in ’93. Given my experience with Robin Bain I probably wasn’t that keen to go
                  back... The reality is that there’s been two calls, two separate sales calls – it’s been
                  mixed up as one.

[25]   TVNZ noted that the news item also discussed comments from Mr Young’s colleague who described him as a “man of integrity”.

[26]   The broadcaster therefore maintained that TVNZ had provided balance to the documentary programme in its own programming, and further balance was provided in other media.

[27]   Alternatively, TVNZ argued that “By examining for the first time the case against Robin Bain, to some extent it can be said that this programme achieved balance that has been missing in previous coverage, but in any event is simply another perspective on the case.”

[28]   TVNZ noted that Mr Young had referred to One News on 6 July, and also promos for The Investigator. It maintained that neither the news item nor the promos mentioned Mr Young or the evidence he gave in court. It also considered that the promos were not “news, current affairs or factual programming” to which Standard 4 applied.

[29]   Accordingly, TVNZ declined to uphold the Standard 4 complaint.

Standard 5 (accuracy)

[30]   TVNZ considered each aspect raised by Mr Young in relation to accuracy.

“Claims” complained of are unspecified, but were opinion

[31]   TVNZ noted that Mr Young had not specified which “claims” he considered to be inaccurate, false, deceptive and misleading. It maintained that the documentary accurately set out Mr Young’s evidence by showing the court footage. It also maintained that the sales documents and the other two interviews were accurately presented in the programme.

[32]   The broadcaster considered that Mr Bruce “[raised] legitimate and genuinely held questions about [Mr Young’s] evidence, but they are the producer’s opinion, and not points of fact to which the accuracy standard applies”.

The sales documentation

[33]   TVNZ stated that Mr Bruce had found the documentation relating to the sale of a photocopier to Taieri Beach School in the date range that Mr Young specified in court. The documentation was signed by Robin Bain and the other photocopier salesman, who was interviewed in the programme, TVNZ said. The broadcaster maintained that “this physical evidence is genuine, and it is not understood that [Mr Young is] seriously contesting it. It was not manufactured by the producer. It was corroborated when Mr Bruce spoke to the photocopier salesman listed on the sales document”.

More than one sales call

[34]   Noting Mr Young’s argument that Mr Bruce had “overlooked” the fact that there could have been more than one sales call made to Robin Bain by U-Bix staff, TVNZ noted that the other salesman had said in the programme, “I don’t recall him (Daryl Young) making three separate trips... I made the initial contact, made the initial visit, subsequent visit, he may have come with me on the third visit,” which it considered was an acknowledgement that there was more than one sales call and that Mr Young may have been present for one of them. It also noted that when asked by Mr Bruce about the other salesman’s claim that he sold the photocopier, Mr Young replied, “it went through in his name but I sold it,” which suggested they were talking about the same photocopier, that was sold in 1993.

[35]   TVNZ considered that Mr Young had not provided any evidence that there was a separate photocopier sale at an earlier time, that he was involved in the first sale, or that he visited the school. It argued that Mr Young’s evidence in this regard was broadcast in the programme, so that viewers were able to make up their own minds on this point. TVNZ emphasised that Mr Bruce made it clear in the programme that he couldn’t say “who was right and who was wrong”.

The van

[36]   In response to Mr Young’s complaint regarding the evidence he gave about Robin Bain’s van, Mr Bruce said:

I am not sure what Mr Young is suggesting here. That Robin had two shabby blue Commer vans, one blocked off, one not? The blue van in the footage with David opening the back door and the courtroom photograph both have the same number plate. I cannot see any reason for thinking they might be different vans.

Other programmes

[37]   TVNZ repeated its view that Mr Young and his evidence were not mentioned in the One News item or in the promos for The Investigator, and that at any rate a promo was not news, current affairs or factual programming to which Standard 5 applied.

[38]   TVNZ concluded that the programme did not contain any material points of fact that were inaccurate or misleading, and it declined to uphold the Standard 5 complaint.

Standard 6 (fairness)

[39]   With regard to Mr Young’s argument that he was “ambushed” by Mr Bruce, TVNZ maintained that “it is not usual to alert a recipient of a phone call that you will ring them before you make the call”. It asserted that the phone call was not on Queen’s Birthday weekend.

[40]   The broadcaster considered that, as Mr Young refused to comment further, the phone call was the only material representing Mr Young’s response. It said that it would not have been used if Mr Young had agreed to meet with Mr Bruce. TVNZ was of the view that Mr Bruce’s phone call was polite and courteous, and that there was nothing unfair about his approach.

[41]   In response to Mr Young’s argument that Mr Bruce did not follow up the phone call, TVNZ said that Mr Bruce believed that Mr Young had made it very clear he did not wish to be contacted by him again, and so Mr Bruce chose not to follow up their first conversation, for risk of Mr Young feeling he was being harassed. Mr Bruce also considered that if Mr Young had changed his mind, he could have contacted him through TVNZ.

[42]   In terms of the broadcast of the phone call, TVNZ argued that Mr Bruce was legally entitled to record and film the conversation, and that the conversation was not said to be “off the record”. Given that Mr Bruce had explained he was making a documentary and was interested in Mr Young’s evidence, TVNZ considered it was reasonable to assume that it would be recorded in some way and may be broadcast. TVNZ quoted a previous decision by the Authority in which it declined to uphold a complaint about the broadcast of footage of a reporter talking on his cell phone where viewers could hear what was being said by the other person participating in the conversation.³

[43]   The broadcaster argued that the use of the footage of the conversation was not unfair or sensational, and that the phone call was courteous and polite. TVNZ considered that “There was nothing embarrassing or objectionable in the recording itself that made it unfair to [Mr Young].” It argued that it was important to include Mr Young’s response, to the extent that he gave one, as it was important to the issues discussed. TVNZ reiterated that if Mr Young had agreed to be interviewed, the phone call would not have been included, but it was the only material representing his response. TVNZ considered that “in all the circumstances, given the apparent direct conflict between Mr Young’s evidence and the information Mr Bruce had obtained... it was in the public interest to broadcast [Mr Young’s] response as recorded in the phone call”. With regard to the news items and promos, TVNZ emphasised that neither mentioned Mr Young or his evidence, or included the phone call.

[44]   Noting that Mr Young argued he had not had an opportunity to respond to the issues relating to Robin Bain’s van, TVNZ argued that Mr Bruce had attempted to put this issue to Mr Young when he phoned. TVNZ considered that the decision to decline Mr Bruce’s invitation to discuss the matter “was [Mr Young’s] choice, and cannot be said to have been unfair to [him].”

[45]   TVNZ concluded that Mr Young was not treated unfairly in breach of Standard 6.

Bill of Rights

[46]   TVNZ said that, “Given the extent of public debate on this case over an extended period and representing a range of perspectives both for and against David Bain, [it had] no doubt that the programme [was] in the public interest and [engaged] freedom of expression at a high level.” It therefore contended that “any limitation on free speech must be compellingly justified”, and it did not consider that it was justified by Mr Young’s complaint. It maintained that the programme was an authorial documentary, that Mr Young’s response was included to the extent that he was prepared to give it, that facts were accurately presented, and that opinions were clearly expressed as such. The use of the phone call was not unfair in the circumstances, it said.

Referral to the Authority

[47]   Dissatisfied with the broadcaster’s response, Mr Young referred the accuracy and fairness aspects of his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Standard 5 (accuracy)

[48]   Mr Young maintained that “the clear impression given by Mr Bruce was that [my] evidence was inaccurate”. He stated that he stood by his testimony, and that he could show that it was accurate.

Sale of photocopier

[49]   Mr Young reiterated that it was possible that the person whose name appeared on the sales documents may not be the same person who had made the sales calls, and also that more than one sales call was made to Mr Bain by U-Bix staff in the early 1990s. Mr Young said that this had now been “corroborated by documentary evidence”, and he enclosed copies of sales documentation which showed that a copier was sold to the school in 1990 by Mr Young, and that he had some involvement in the subsequent sale in 1993, in the role of sales manager.

[50]   With respect to the 1993 sale, Mr Young argued that Mr Bruce should have mentioned that Mr Young’s name appeared on some of the documents. In fact, he argued, when Mr Bruce showed the letter with the other salesman’s name, “Mr Bruce obscured [Mr Young’s] name with a photograph of Robin Bain”. Mr Young stated that he was sales manager at the time of the 1993 sale and therefore no longer working on a commission. He said that it was not uncommon for him to allow other sales staff to put sales through in their names so that they could earn the commission. Accordingly, he said, it was quite possible that he was directly involved in the 1993 sale.

 The van

[51]   Mr Young argued that, had he been given a fair opportunity to respond to the issue of the van, he would have explained that, by “the back of the van”, he meant the side doors, as opposed to the driver and passenger doors. He also pointed out that in his evidence he stated that he had “moved away five or 10 metres” which was why he could not see into the van. He considered that Mr Bruce had inaccurately represented his evidence and created the impression that Mr Young’s evidence could not have been correct. Further, Mr Young said that he now understood from police that Robin Bain “did, in fact, own more than one Commer van”.

Standard 6 (fairness)

[52]   Mr Young stated that his primary concern under fairness was the manner in which he was contacted by Mr Bruce. He reiterated the arguments in his original complaint, and considered that he was “put on the spot and confronted with serious allegations”. Mr Young maintained that in these circumstances, he was “ambushed”.

[53]   The complainant argued that it was unfair for TVNZ to substantially rely on the comments he made during the phone conversation, given that he made them at a time when he was put on the spot, with no prior warning, and no opportunity to consider what Mr Bruce was asking him. He argued that, in fairness to him, given the seriousness of the allegations, Mr Bruce should have followed up his phone call with written correspondence, to give him a fair opportunity to consider the sales documents. He noted that Mr Bruce had been involved in the preparations for the programme since February 2010, but did not contact him until June.

[54]   With regard to TVNZ’s argument that there was public interest in broadcasting Mr Bruce’s phone call to Mr Young, Mr Young said that he “[failed] to see how it can be in the public interest for an innocent individual to be subjected to serious and unsubstantiated implied allegations of perjury”.

[55]   The complainant concluded that “The overall circumstances where very serious allegations were being put to [him] (and filmed) with no warning or follow-up were entirely unfair”.

Broadcaster’s Response to the Authority

[56]   TVNZ requested that the Authority’s consideration of Mr Young’s complaint be put on hold. It said that the sales documents supplied by Mr Young in his referral could not be addressed by TVNZ because it was not in possession of information vital to its response.

Complainant’s Response to Broadcaster’s Request

[57]   Mr Young considered that it appeared that Mr Bruce now wanted to make inquiries that he did not make when he was preparing the programme. He reiterated that the programme had had a substantial impact on him, and considered it would be unfair to delay progression of his complaint for an indefinite period.

Authority’s Request for Further Information from the Broadcaster

[58]   The Authority asked TVNZ to outline which parts of the complaint or the programme it was unable to address, and why. TVNZ noted that Mr Young had made a number of allegations about the programme based on the sales documentation attached with his referral, and said that Mr Bruce needed confirmation about aspects of this documentation in order for TVNZ to address Standard 5.

Authority's Determination

[59]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 6 (fairness)

[60]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[61]   Mr Young argued that “the manner in which Mr Bruce dealt with [him] was unfair”. He considered that Mr Bruce had “ambushed” him. He was not told that the phone call was being filmed or that it would be broadcast on television, he said, and he considered that he was “put on the spot and confronted with serious allegations”. He said that “no attempt was made to follow up Mr Bruce’s ambush phone call with a second call or a written request, despite a period of approximately five weeks elapsing between the date of Mr Bruce’s call to me and the screening of the programme”.

[62]   At the outset, we disagree that Mr Young was “ambushed”. Mr Bruce did not need permission to phone him, and he clearly explained at the beginning of the phone call who he was, that he was making a programme, and what the programme was about.

[63]   However, in our view, the matters about which Mr Bruce was phoning required the broadcaster to ensure that Mr Young was offered a fair and reasonable opportunity to provide a response. Mr Bruce was raising serious issues about the veracity of Mr Young’s testimony, which TVNZ must have known would have a significant impact both on Mr Young, and in the media, given the high level of public interest in David Bain’s case.

[64]   While we acknowledge that Mr Bruce did not expressly state that Mr Young had given false evidence, we consider that most viewers would have been left with that impression, due to Mr Bruce’s suggestions that the recollections of the other two interviewees, the sales documents, and the photos of Robin’s van, “contradict” what Mr Young said in court, and that what he said “wasn’t accurate” (see paragraph [6]).

[65]   In these circumstances, we consider that one phone call, without any follow-up, did not represent sufficient or reasonable efforts by the broadcaster to engage with Mr Young and obtain a meaningful response from him. As noted above, the implication that Mr Young may have given false evidence was serious; therefore the broadcaster needed to ensure that Mr Young was given every opportunity to comment. TVNZ needed to ensure that Mr Young was fully cognisant of what the programme might say about him, and understood the implications of his refusing an interview. We do not think this was achieved by a single phone call to Mr Young’s home on a Saturday morning. In our view, Mr Young should have been given an opportunity to reconsider his position. While we hesitate to be overly prescriptive, we consider that the broadcaster should have made at least one more approach and – given that the issues concerned events which had taken place some 17 years before and that there were conflicting accounts from the other two interviewees to consider – this approach should have been made in writing to give Mr Young an opportunity to think carefully about what Mr Bruce was alleging and form a response accordingly.

[66]   With regard to the argument made by TVNZ and Mr Bruce that he had given Mr Young the opportunity to discuss these issues, and that he believed Mr Young had made it clear he did not want any further contact with him, we consider that the broadcaster was obliged to exhaust other legitimate ways of offering Mr Young an opportunity to comment, for example by writing to him and enclosing copies of the relevant documents. The onus was not on Mr Young to contact Mr Bruce, but on the broadcaster to ensure he was given a reasonable opportunity to provide a response.

[67]   Accordingly, we find that the broadcaster treated Mr Young unfairly because he was not given a reasonable opportunity to provide a response to the allegations made about him in the programme.

[68]   Having reached this conclusion, we must consider whether to uphold this part of the complaint as a breach of Standard 6. In Commerce Commission and TVWorks Ltd,⁴ the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[69]   We find that upholding a breach of the fairness standard on this occasion would be commensurate with our finding that Mr Young was treated unfairly because the programme raised serious issues regarding the veracity of his evidence, which would have a significant impact on Mr Young’s reputation, and the broadcaster did not ensure that he was given a fair and reasonable opportunity to respond to those matters.

[70]   In this respect, upholding the complaint clearly promotes the objective of Standard 6, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. Accordingly, we uphold the complaint that The Investigator breached Standard 6 in relation to the treatment of Daryl Young.

Standard 5 (accuracy)

[71]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[72]   Mr Young’s arguments under accuracy relate primarily to the implication in the programme that he may have given misleading evidence during the retrial.

[73]   The Authority has previously noted that it cannot assume the role of a criminal court in determining whether a crime has been committed.⁵ We are not in a position to determine whether or not it was accurate or misleading to imply in the programme that Mr Young’s evidence was incorrect. We therefore find that it is appropriate in all the circumstances to decline to determine Mr Young’s accuracy complaint under section 11(b) of the Broadcasting Act 1989.

[74]   For this reason, we also consider that it is not necessary to place the complaint on hold, pending further information from TVNZ and Mr Bruce.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of The Investigator: The Case Against Robin Bain on 6 July 2010 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[75]   Having upheld the fairness complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

Mr Young’s submissions on orders

[76]   Mr Young submitted that the broadcaster should be ordered to broadcast a statement summarising the Authority’s decision. He argued that the statement should include an apology to him, as the programme had caused him “significant concern and distress, both personally and professionally”.

[77]   Mr Young argued that TVNZ should be ordered to pay 100 percent of his legal costs, totalling $6,490.75, given the complexity of the issues, and given that he was significantly affected by the broadcast, and therefore justified in seeking legal advice.

[78]   The complainant submitted that an order of costs to the Crown was warranted in this case, to mark the serious departure from broadcasting standards. He was of the view that an order close to the maximum sum that can be awarded ($5,000) was justified.

Broadcaster’s submissions on orders

[79]   TVNZ maintained that, if Mr Young had been significantly affected by the programme, this was due to inconsistencies in the evidence he gave in the retrial, not due to the broadcast of that information. It emphasised that Mr Bruce had contacted Mr Young and put the new information he had to him.

[80]   On the matter of an order for a statement or an apology, TVNZ submitted that, if the Authority ordered a broadcast statement, it should be in the format that was routinely ordered, and in a similar time to the original programme which was screened at 9.30pm.

[81]   With regard to costs, TVNZ was of the view that Mr Young’s submissions that costs were warranted were reliant on the programme being inaccurate, which was not what the Authority determined. It therefore argued that these submissions should not be considered by the Authority.

[82]   The broadcaster reiterated its view that the programme showed a side of the debate about the Bain family murders that had not often been discussed in the media, and that this was in the public interest.

[83]   TVNZ concluded that the publication of the decision would be sufficient penalty and that no other orders were warranted.

Authority’s Decision on Orders

[84]   Having considered the parties’ submissions, we have reached the view that orders requiring a broadcast statement, an apology, or costs to the Crown are not warranted on this occasion. Apologies are ordered rarely and only in exceptional circumstances, and we are not satisfied that such circumstances exist in this case. Broadcast statements usually aim to rectify the original breach by correcting an error, and costs to the Crown are imposed where there has been a serious departure from broadcasting standards.

[85]   We note that on this occasion, we have not upheld the accuracy complaint, and the unfairness did not result from any inaccuracy, so a correction is not necessary. We have upheld only one aspect of the fairness complaint, being that Mr Young was not given a fair opportunity to respond to the matters raised in the programme. We are satisfied that the broadcaster believed a genuine attempt had been made in that respect, and that the breach resulted from a misjudgement rather than any deliberate actions by the broadcaster.

[86]   With regard to legal costs, the Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances.

[87]   On this occasion, while we acknowledge that Mr Young was entitled to obtain legal advice, we do not consider that the issues raised were particularly complex. In our view, legal costs totalling $4,500 would be reasonable. Taking into account the nature of the complaint and the fact that only one aspect has been upheld, we see no reason to adjust the award upwards or downwards from one-third. Accordingly, we consider that an award of costs to the complainant in the amount of $1,500 is appropriate on this occasion.

Orders

Pursuant to section 16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $1,500, within one month of the date of this decision.

This order for costs shall be enforceable in the Wellington High Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
18 March 2011

Appendix

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

1                  Daryl Young’s formal complaint – 16 July 2010

2                 Further grounds for complaint by Mr Young – 1 August 2010

3                 TVNZ’s response to the complaint – 16 August 2010

4                 Mr Young’s referral to the Authority – 13 September 2010

5                 TVNZ’s response to the Authority – 21 September 2010

6                 Mr Young’s response to TVNZ’s request – 24 September 2010

7                 TVNZ’s response to Authority’s request for further information – 24 September 2010

8                 Mr Young’s response to TVNZ – 24 September 2010 

9                 Mr Young’s submissions on orders – 20 January 2011

10              TVNZ’s submissions on orders – 11 February 2011

¹Decision No. 2005-125

²Halliwell and TVNZ, Decision No. 2009-091

³Truong and TVNZ, Decision No. 2007-124

⁴Decision 2008-014

⁵See, for example, Hunt and Maori TV (Decision No. 2009-010) and McLean and Others and Pacific 
 Coast FM (Decision No. 2007-098).