Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – interviewed former SIS agent about its operation in the 1970s involving Dr William Sutch and representatives of the Soviet Embassy – former agent said that Dr Sutch had been a spy for 30 years – allegedly unbalanced, inaccurate and unfair
Standard 4 (balance) – programme did not deal with a controversial issue of public importance – standard does not apply – not upheld
Standard 5 (accuracy) – statements clearly expressions of former agent’s opinion – not facts – not upheld
Standard 6 (fairness) – no unfairness to members of Dr Sutch’s family – not upheld
This headnote does not form part of the decision.
 Kit Bennetts, a former SIS agent who had obtained High Court approval to publish a book covering aspects of his work, was interviewed on Sunday, broadcast on TV One at 7.30pm on 1 October 2006. The agent spoke about his work and described his part in the surveillance of Dr William Sutch and representatives of the Soviet Embassy, and their clandestine meetings. He outlined the type of information which he believed Dr Sutch had passed to the Soviets. That information, he believed, contained pen portraits of senior public servants in New Zealand at the time. The former agent had been involved in the arrest of Dr Sutch in 1974 for treason and had given evidence at his trial. The agent was adamant that Dr Sutch, although acquitted, had been a spy for 30 years.
 In addition to interviews carried out at various places to which the former agent referred, the item included simulations of clandestine meetings between Dr Sutch and the Soviet Embassy representatives. It also included archive footage of an interview with Dr Sutch denying the charge and footage of Dr Sutch with his wife and daughter.
 Simon Boyce complained to Television New Zealand Ltd, the broadcaster, that the item breached standards of balance, accuracy and fairness.
 Referring to a current affairs item about the 1975 trial of Dr Sutch broadcast by TVNZ in 2000 which, like the present item, had claimed to advance new evidence, Mr Boyce suggested that there was an obsession about Dr Sutch within TVNZ. He noted that he had complained about the 2000 item and that TVNZ had upheld one aspect as inaccurate.
 Mr Boyce maintained that the only new evidence advanced in the current item was the identity of the former SIS agent. He argued that the agent had exaggerated his role and described as “a joke” the agent’s contention that Dr Sutch would have been caught as a spy but for the heavy rain on the night of the alleged meeting with the Soviet agent. Mr Boyce insisted that the former agent’s statement about the contents of the package that Dr Sutch allegedly gave to the Soviet agent on the night of his arrest was only a guess.
 Mr Boyce submitted that, because of the lack of evidence, it was a serious breach to contend that Dr Sutch had been a spy for 30 years. While the item included the photographs of the Soviet agent running down the road and of Dr Sutch being arrested, Mr Boyce argued that the other simulated sequences included in the item involving Dr Sutch and the Soviet agent were deliberately misleading. Further, he wrote, it was unfair to use footage of Dr Sutch, his wife and his daughter.
 Mr Boyce listed the following main points of his complaint:
 TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. They provide:
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 4a Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.
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.
 TVNZ stated that the Sutch spy trial remained a subject of ongoing interest and, therefore, it was bound to pass on information contained in a book by a former SIS agent who had been close to the investigation. While it was important to hear his comments and to question him about them, TVNZ did not believe that it was necessary in order to achieve balance to repeat all the previous debate on the “Sutch issue”. The former agent’s contribution joined the other information available and it was for history to decide, if possible, “where the truth lies”.
 The former agent, TVNZ continued, explained his close association with the “Sutch issue” and advanced his genuinely held opinions. The item included Dr Sutch’s denial of the charges and reported twice that Dr Sutch had been found not guilty at his trial for treason.
 TVNZ dealt with the four main points raised by the complainant:
No evidence that Sutch was a spy for 30 years
 TVNZ said that it had confirmed that the former agent had been an active SIS agent who had had access to the files on Dr Sutch. The claim he made “transparently reflected the views of a particular person” who had had a close involvement with the case.
Contents of the package
 TVNZ maintained that the agent had the right to express his point of view and that it had the right to report it. TVNZ also pointed out that the item disclosed that, at the time, the SIS had been aware of the meetings between Dr Sutch and his Soviet contacts before they happened.
Former agent’s comments slanderous and offensive to the family
 These views were published in the agent’s book, and the item included Dr Sutch’s denial. TVNZ added:
As a prominent public figure Dr Sutch’s actions and motivations must remain of considerable public interest, even years after his death.
TVNZ biased in its use of simulations
 TVNZ said that the simulations were based on photographs and notes made at the time by the former agent. The meetings had taken place and, TVNZ wrote, there was no bias in the depictions.
 Turning to the complaint about the item broadcast in 2000, TVNZ said the aspect upheld referred only to an incorrectly identified still photograph. Furthermore, TVNZ wrote, in 2002 it had broadcast another item which dealt with the Sutch issue, and the complaint on that occasion had not been upheld.
 As for the specific standards nominated in regard to the recent item, TVNZ said it complied with Standard 4 (balance). It considered that the period of current interest for the Sutch issue was ongoing and the item had questioned the opinions and assertions advanced by the former agent. Further, it had emphasised Dr Sutch’s acquittal.
 In regard to Standard 5 (accuracy), TVNZ said that the item had accurately reflected the agent’s views, adding:
It neither endorsed nor dismissed those views – leaving it to viewers to decide for themselves what part [the former agent’s] contribution played in their understanding of the Sutch case. The item made it clear that Dr Sutch was acquitted of the treason charges.
 Turning to Standard 6 (fairness), TVNZ did not consider that the item was unfair to the surviving members of the Sutch family because the Sutch issue remained one of broad public interest.
 It declined to uphold the complaint.
 Dissatisfied with TVNZ’s response, Mr Boyce referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989
 Mr Boyce maintained that he was concerned by “the lack of balance shown especially by TVNZ in re-litigating the Sutch trial”. The lack of balance was evident, he argued, by TVNZ’s apparent ignorance of the “scholarship on the Sutch case”, and the biased way it constructed its programmes. He contended that the simulations of the meetings between Dr Sutch and the Soviet Agent shown in the item had been “choreographed” by the former agent.
 Mr Boyce claimed that TVNZ, in the broadcast, had advocated the views of the former agent that Dr Sutch was guilty. That was strange, he believed, as Dr Sutch’s actions did not suggest that the meetings were expected to be clandestine and, through the broadcast, TVNZ has “got no closer to what actually took place at the meetings”.
 TVNZ observed that the complaint seemed to be based on opinion. It said that it had no further substantive comments to make.
 In his final comment, Mr Boyce wrote:
TVNZ offered a former spy, who broke their own rules in his revelations, more than 15 minutes of opinion without any balancing factor. As subsequent opinions on the programme have shown, as published in letters to editors, [the former agent’s] opinions do not square with the account of the evidence heard at Sutch’s trial. There is still no proof of a meeting, clandestine or otherwise, nor of any package. Yet, TVNZ continues to devote large amounts of airtime and resources to trying to prove Sutch’s guilt, despite the lack of new evidence. The case is not of such historical significance to justify such a focus, and reflects personal agendas, as well as systematic bias in presentation.
 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.
 A broadcast which deals with a controversial issue of public importance is required to comply with Standard 4 (balance). In the view of the Authority, the broadcast complained about did not deal with such an issue.
 The Authority acknowledges that the question of Dr Sutch’s guilt was of great public interest at the time of his arrest and trial, and that it continues to be of historical interest to many. It is, however, no longer a controversial issue of current interest. This programme simply allowed one person to advance his recollections about an event which occurred some 30 years previously. As that event is not a current controversial issue, the standard does not apply.
 In any event, the Authority notes that the item reported that Dr Sutch was acquitted and it included archive material in which he strongly denied the allegation.
 Standard 5 requires news, current affairs and factual programmes to be truthful and accurate on points of fact. The complainant argued that two comments were inaccurate: that Dr Sutch had been a spy for 30 years, and that the former agent knew what was in the package which Dr Sutch was said to have given the Russian diplomat.
 In the Authority’s view, both comments were clearly advanced as the former agent’s recollections and interpretations of events. They were his opinions and, accordingly, the requirement for accuracy does not apply.
It was also contended that the simulations contained in the item were inaccurate. Again, they were clearly representations of the agent’s opinion of what had occurred and Standard 5 does not apply.
 Taking into account its comments in Decision No. 1994-112, the Authority finds that the requirement of fairness does not apply in respect of people who are deceased. Accordingly, the Authority does not need to address whether the programme was fair to Dr Sutch.
 The Authority has also considered whether it was unfair to include archival footage of Dr Sutch’s wife and daughter. The Authority notes that they were shown in a neutral context, and were not criticised in any way. Accordingly, it concludes they were treated fairly and it declines to uphold the complaint that the item breached Standard 6 (fairness).
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
22 February 2007
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Simon Boyce’s formal complaint to Television New Zealand Ltd – 20 October 2006
2 TVNZ’s response to the complainant – 18 October 2006
3 Mr Boyce’s referral to the Broadcasting Standards Authority – 10 November 2006
4 TVNZ’s response to the Authority – 29 November 2006
5 Mr Boyce’s final comment – 6 December 2006