BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The conviction of Gay Oakes for the murder of her de facto husband Douglas Gardner

was the subject of the discussion and the telephone calls on CTV's programme,

George Balani at 6, broadcast at 6.00pm on Wednesday 29 March 1995.

Writing as the late Mr Gardner's sister, Ms Johnston complained to Canterbury

Television Ltd that the item was unbalanced, that it contained unjustified speculation

about her brother's upbringing, and that the callers who supported the jury's verdict

were treated brusquely. The programme, she added, added to the family's stress at a

time of grieving.

Accepting that the studio audience had represented only one view, that the host had

not provided an alternative perspective, and that the one caller who supported the

jury's verdict was indeed treated brusquely, CTV upheld the complaint. CTV

expressed sincere apologies and offered Ms Johnston the opportunity to appear on a

Balani programme should she wish to do so. Dissatisfied with the action in view of

the extent of the criticism in the programme, Ms Johnston referred the complaint to

the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upheld the complaint and ordered the broadcast

of an apology.

Decision

As explained below, the members of the Authority have not viewed the item

complained about. They have read the correspondence (summarised in the

Appendix). As is its practice, the Authority has determined the complaint without a

formal hearing.

CTV's George Balani at 6 involves discussion of current issues in which telephone

callers and the studio audience participate. The programme on 29 March involved a

discussion about the conviction of Gay Oakes for the murder of her de facto husband,

Douglas Gardner. After being missing for 14 months, Mr Gardner's body was found

buried in their garden. The murder trial, some six months later, involved allegations of

considerable domestic violence inflicted by Mr Gardner on Ms Oakes. Her conviction

for murder provoked considerable public discussion about the applicability of the

battered spouse syndrome as a defence.

Ms Johnston, the late Mr Gardner's sister, complained to CTV that the discussion on

29 March was unbalanced. The studio audience, and most of the telephone callers,

she continued, were Ms Oakes' supporters. The telephone callers who opposed Ms

Oakes were "brusquely terminated". Moreover, she said, no family members were

invited to the discussion which had, without evidence, vilified the family.

In response to Ms Johnston's complaint, CTV wrote:

We have considered your complaint dated 5th April and with regret have

concluded that it should be upheld.

It acknowledged that the pro-Oakes faction dominated the studio audience and

telephone callers, and that the host had not provided balance. It agreed that one caller

was brusquely treated and that much of the comment, including the child abuse issue,

was ill-informed, speculative and unsupported by any evidence.

CTV recognised that the remarks would have been offensive and hurtful to the late Mr

Gardner's family and offered sincere apologies. While it noted that Ms Johnston

might not wish to make use of the opportunity, it offered her equal time on the Balani

programme when the host returned from holiday.

When she referred her complaint to the Authority, Ms Johnston alluded to the

humiliation felt by the family. CTV had nothing to add in its report to the Authority.

It was unable to supply the Authority with the required copy of a tape of the item

"as the only copy has been misplaced".

In her final comment Ms Johnston emphasised her dissatisfaction with CTV's

actions. She declined the offer to appear on the programme as:

I feel to do this would only ridicule myself and my family further.

She also noted – to which CTV has not responded – that she had spoken to CTV

management before the broadcast, advising how the family was being treated critically

by the programme's host in other media.

The Authority first considered the absence of a tape of the programme. It cannot

stress too highly the importance of a tape to its decisions. Television is a visual and

verbal medium where the way in which a statement is made can have a considerable

impact on the viewer, and where, in many cases, the images seen are equally, if not

more important, than the accompanying spoken words.

As CTV upheld the present complaint, the absence of a tape was not seen as a

fundamental flaw, as it would be on many other occasions. Moreover, because of the

comments made in the correspondence, the Authority decided that it had sufficient

information to make a decision. However, should the absence of a tape prove not to

be an isolated exception, the Authority gives notice that it may well apply to the

Government for regulations under s.30 of the Broadcasting Act 1989. It is not an

option which fits easily into the philosophy of the Act but, unless all broadcasters

take their responsibilities under the Act seriously, it is an option which the Authority

may feel compelled to pursue.

Section 30 provides for the promulgation of rules in relation to the retention of tapes

by broadcasters and for a fine of up to $5000.00 for broadcasters who fail to comply.

CTV did not record under which standard it had upheld Ms Johnston's complaint but,

having regard to the issues raised, it was apparent that it had decided that the

broadcast of George Balani at 6 on 29 March breached standard G6 of the Television

Code of Broadcasting Practice. It requires broadcasters:

G6.  To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.

Having upheld the complaint, CTV's letter recorded sincere apologies and offered Ms

Johnston the opportunity to appear on a forthcoming programme.

While such an offer might appear reasonable in theory, the Authority believes that it

could be unfair in practice. Ms Johnston is not herself, apparently, experienced in

media presentation and she might well feel at a disadvantage in a potentially hostile

environment and, one in which, moreover, she believes her family has already been

maligned.

When considering appropriate action, the Authority held that the breach was serious:

balance is a talkback host's responsibility, although he might not be expected to

remain neutral himself, and balance was plainly not achieved on this programme.

It might be argued that talkback involves open lines, so that callers have the chance

randomly to present different perspectives and that this in itself creates a natural

balance. However, on occasions like this one, when host and callers were apparently

in agreement over a volatile issue, balance did not result. The Authority believes that

the host – him or herself – then has an obligation to present other possible points of

view in order to ensure that the issue dealt with is canvassed responsibly.

On this occasion, according to the information available to the Authority, which is not

disputed, the host failed to comply with these requirements. Furthermore, he

dismissed one caller who apparently could have put the opposing point of view. On

this point, the Authority noted that CTV's action when upholding the complaint does

not appear to have included reminding the host and the programme's producer about

their responsibility for balance.

As the broadcast complained about included a studio audience, CTV had the

opportunity to ensure by invitation that the different perspectives were represented.

Ms Johnston maintained, and CTV did not dispute, that the family were not invited

to participate.

As the broadcast complained of was unbalanced and included offensive and

speculative comments, the Authority concluded that a broadcast apology was

appropriate.

For the reasons given above, the Authority upholds the complaint that

Canterbury Television Ltd's action, having upheld the complaint that the

broadcast of the programme George Balani at 6 on 29 March was unbalanced,

was insufficient.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Broadcasting Act 1989. As will be apparent from the decision, the Authority believes

that an order is appropriate in this instance. The following order is imposed:

Order

Pursuant to s.13(1) of the Broadcasting Act 1989, the Authority orders

Canterbury Television Ltd to broadcast a brief summary of its decision and an

apology to Ms Wendy Johnston, approved by the Authority, arising from the

broadcast of George Balani at 6 on Wednesday 29 March 1995. The broadcast

shall be made on a George Balani at 6 programme within one month of the date

of this decision or as approved by the Authority.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
5 October 1995

Appendix

Ms Johnston's Complaint to Canterbury Television Ltd - 5 April 1995

Wendy Johnston of Christchurch complained to Canterbury Television Ltd about the

programme George Balani at 6 broadcast at 6.00pm on Wednesday 29 March 1995.

The programme consists of a studio discussion and calls from viewers and, on 29

March, it dealt with the conviction of Gay Oakes for the murder of her de facto

husband Douglas Gardner.

Writing on behalf of her family and her late brother, Douglas Gardner, Ms Johnston

stated that the broadcast was unbalanced. Noting that Gay Oakes had been convicted

of the murder of her brother, Ms Johnston said the studio audience at the programme

complained about consisted of Ms Oakes' supporters who had appeared on other

television items. No attempt, she wrote, had been made to invite a member of the

deceased's family to provide balance.

Secondly, Ms Johnston commented that the majority of the calls were in support of

Ms Oakes and those who took the opposing line were treated with contempt and

"brusquely terminated".

Thirdly, without any basis of knowledge, callers vilified the family in which her

brother had been raised. That, she added, contributed to the stress felt by the family.

Fourthly, as a the Court of Appeal had reserved its decision on Ms Oakes' appeal,

she argued that the matter should be regarded as sub-judice.

CTV's Response to the Formal Complaint - 26 June 1995

CTV began its response to Ms Johnston:

We have considered your complaint dated 5th April and with regret have

concluded that it should be upheld.

CTV acknowledged that the interviewees represented one particular pressure group

and, unlike the usual situation where telephone callers provided balance, on this

occasion the host had inadequately presented the other side of the case. It continued:

Obviously this station cannot select the telephone callers, and the fact that the

majority were pro Oakes, cannot be seen as the fault of CTV. However, we do

agree that one caller who was of the other view was brusquely treated by Mr

Balani. Although this may have more to do with the callers manner in which the

caller expressed his opinion rather than with the opinion itself, it may have

suggested some support by the Channel for the pro Oakes faction.

Agreeing that the comments about the deceased's upbringing were both speculative

and ill-informed, CTV expressed its "sincere apologies" for the hurt to the deceased's

family. Moreover, in an attempt to ameliorate the damage, CTV offered Ms Johnston

the opportunity to appear in the Balani programme after his return from holiday.

CTV accepted that Ms Johnston might not wish to avail herself of that opportunity.

Ms Johnston's Complaint to the Broadcasting Standards Authority - 13 July

1995

Dissatisfied with CTV's suggested action, Ms Johnston referred her complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Ms Johnston explained that the family had been through a traumatic experience as her

brother had first been missing for fourteen months. Then, when his body was

discovered, proceedings against Oakes - his de facto - had taken six months until she

was convicted of murder. Referring also to George Balani's position as a talkback

host with Radio Pacific, Ms Johnston maintained that he had ridiculed the family.

Dealing mainly with her complaint to Radio Pacific about a talkback programme which

raised similar issues to the current complaint, Ms Johnston also commented that CTV

had upheld the complaint but she did not wish to take up its offer for air time to

respond.

CTV's Response to the Authority - 24 July

In its report, CTV said that the correspondence indicated that Ms Johnston had

always intended to take her complaint to the Authority but she had not said that she

was dissatisfied with CTV's action.

CTV said that it had nothing to add to the letter of 26 June to Ms Johnston. It was

unable to meet the Authority's request for a copy of a tape of the item as "the only

copy has been misplaced".

Ms Johnston's Final Comment to the Authority - 31 July 1995

Ms Johnston began:

I am totally dissatisfied with the action taken by them or the decision to give me

airtime with Mr Balani. I feel to do this would only ridicule myself and my

family further.

Her husband, she added, had spoken to CTV's managing director before the

programme to explain how the family was being affected by Mr Balani's action CTV

had replied, she said, that it could not control Mr Balani once he got his teeth into

something. She concluded:

I feel that Canterbury Television had been pre-warned about our feelings and

chose to carry on.