Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – “The Monster of Berhampore” – case of Wallace Lake who ran the Berhampore Children’s Home – accused of sexually molesting children – police had received 13 complaints and decided to charge Mr Lake before he died – questioned whether Presbyterian Support Services who ran the home had done enough to help complainants – allegedly unbalanced and inconsistent with the maintenance of law and order
Standard 2 (law and order) – did not encourage viewers to disrespect principles of law – not upheld
Standard 4 (balance) – programme discussed controversial issue of public importance – programme did assume Mr Lake’s guilt – TVNZ contacted Mr Lake’s solicitor and family as Mr Lake deceased – they declined to comment – TVNZ made reasonable efforts to get other perspective on allegations – complainant identified no other information or means by which to refute allegations against Mr Lake – programme not unbalanced – not upheld
This headnote does not form part of the decision.
 An item on Sunday entitled “The Monster of Berhampore” was broadcast on TV One at 7.30pm on 1 May 2005. It examined the case of the late Wallace Lake (incorrectly referred to throughout the programme as “Walter Lake”), a former senior member of the Presbyterian Support Services who ran the Berhampore Children’s Home in Wellington. In 1991, former residents alleged that Mr Lake had sexually abused children between the ages of eight and fourteen while they were in his care in the 1960s and 1970s. The item reported that the police had received 13 complaints, and raised the question of whether enough had been done to help the complainants.
 The item included interviews with several complainants, a spokesman from Presbyterian Support (Trevor Roberts), and a deaconess in the Presbyterian Church who had previously worked at the home (Mavis Van Dalen). Ms Van Dalen stated in the item that she had told the head of the Presbyterian Church about the allegations on three occasions 14 years earlier.
 Brian Robinson complained to Television New Zealand Ltd, the broadcaster, that the item breached Standards 2 and 4 of the Free-to-Air Television Code of Broadcasting Practice.
Standard 2 (law and order)
 Mr Robinson contended that the item treated serious, unsubstantiated criminal allegations as established facts. He argued that no independent proof of the allegations was presented in the programme, adding:
Had Mr Lake been alive, there can be no doubt that the shocking allegations, and the savage and sensationalist presentation, when coupled with a total absence of verifiable facts, would have made the programme defamatory.
 The complainant concluded that TVNZ had screened the programme believing that “they could get away with it” because Mr Lake had passed away. Further, he asserted that the programme had breached the fundamental principle that a man is innocent until proven guilty according to law. As examples, Mr Robinson cited the following elements of the item:
Standard 4 (balance)
 In his complaint about a lack of balance, Mr Robinson referred to Guideline 4a of Standard 4, which requires that programmes dealing with current affairs and questions of a controversial nature must show balance and impartiality. He alleged that the item ignored the strong denials of offending that Mr Lake had made prior to his death.
 Mr Robinson argued that, for a serious crime that was disputed, failing to cover the possibility that Mr Lake was innocent showed a lack of balance and impartiality. He added:
If this programme is deemed to be fair, it will set a sad precedent that the death of an individual permits the media to make comment that would otherwise be defamatory.
 The complainant acknowledged that the item reported one of the complainants had made a complaint 20 years ago, and that the police had believed Mr Lake. However, he noted, this information was not discussed any further and Mr Lake’s own denials were not described.
 Mr Robinson also noted that a spokesman for Presbyterian Support Services on the programme had said “the fact that the police have decided to charge [Wallace Lake] doesn’t mean that he’s guilty”. However, Mr Robinson contended that these comments in relation to the rest of the programme did not provide adequate balance.
 Mr Robinson referred to several examples from the programme where those alleging that Mr Lake had abused them were called “victims”. Given that there had been no court case or formal enquiry, he said, the use of such language was extremely prejudicial.
 Finally, the complainant alleged that the lack of balance in the programme was exacerbated by the choice of background music. He argued that it was “spooky” music, which appeared to have been chosen to heighten the effect of presenting Mr Lake as being guilty of the alleged events.
 TVNZ assessed the complaint under Standards 2 and 4 and guidelines 2a and 4a of the Free-to-Air Television Code of Broadcasting Practice. They provide:
Standard 2 Law and Order
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.
Broadcasters must respect the principles of law which sustain our society.
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.
Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.
 TVNZ stated that Mr Robinson’s complaint appeared to be based on a mistaken assumption that TVNZ had held on to the information in the programme until after the death of Mr Lake. In fact, TVNZ said, the information was the result of a long and painstaking investigation, and the main allegations had first been broadcast in two items on Holmes on 15 and 22 July 2004.
 The broadcaster advised that Mr Lake had been alive at the time of the earlier broadcasts, and had not issued defamation proceedings against TVNZ. Mr Lake had also refused to be interviewed by TVNZ on his lawyer’s advice. The broadcaster further noted that the truth is a complete defence against defamation, and added:
The principle of “innocent until proven guilty” is a legal one and is not a principle that necessarily applies to journalism where exhaustive enquiries have uncovered sufficient evidence to counter a charge of defamation. If journalists were to apply an “innocent until proven guilty” test in every case, many very important stories would never be uncovered.
 TVNZ contended that it was important to remember that the public’s right to know was central to the business of journalism. Journalists working on the Sunday item had to choose whether to believe Mr Lake or his accusers, it said, and having gathered all the evidence they believed the complainants. TVNZ noted that the police had shared that view, and had told Sunday that they were about to arrest Mr Lake and charge him with multiple counts of child abuse.
 The broadcaster concluded that Standard 2 (law and order) had not been breached. It did not believe that an item which raised legitimate questions about victims of child abuse, and how their complaints were being handled, could be considered inconsistent with the maintenance of law and order.
 Turning to consider Standard 4 (balance), TVNZ observed that a reporter had contacted Mr Lake’s lawyer three times prior to the broadcast. The first two requests had been in the form of an invitation to members of Mr Lake’s family to contribute to the programme, but they did not wish to. The third time was a request for an interview, but had also been a courtesy call to advise the Lake family when the programme would be broadcast, in case they wished to avoid seeing it.
 TVNZ noted that Standard 4 required broadcasters to give reasonable opportunities for significant points of view to be heard. As Mr Lake was deceased, the broadcaster said, it had been appropriate for the significant point of view to be requested through his lawyer.
 TVNZ was of the view that the programme made it clear that some people disputed the guilt of Mr Lake. It noted an excerpt from the programme in which the Presbyterian Support spokesman said:
It’s about the management of risk and finding the truth of the matter. The fact that the police have decided to charge doesn’t mean he’s guilty, and I have to tell you that our own investigations into some of the matters where we have been able to investigate indicate that there are some quite considerable issues of credibility in respect of some of these complaints.
 TVNZ referred to Mr Robinson’s complaint about the “spooky” music, maintaining that it was a “spooky” subject. It did not believe the music was inappropriate when re-enacting the events. As a final observation, TVNZ noted that the Sunday programme on 22 May 2005 had included the following extract from a historical taped interview with Mr Lake:
Reporter: “[Wallace] Lake went to his deathbed six months ago denying he ever
sexually abused children”
Wallace Lake: “There’s nothing on my conscience after all these years”
 The broadcaster concluded that Standard 4 was not breached.
 Mr Robinson referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.
 In referring his complaint to the Authority, Mr Robinson requested the Authority to require production of the field tapes of all the interviews conducted in preparing the item.
 In Decision No. ID2005-082, dated 28 September 2005, the Authority declined Mr Robinson’s requests, as it considered he had not established the potential relevance of the material he had requested.
 Mr Robinson maintained that Standards 2 and 4 were breached. He stated that his complaint raised the general principles of fairness when a broadcaster covers criminal allegations about a person once they are dead. While the laws of defamation did not apply to deceased persons, he contended, the standards of fairness and balance were still relevant if that person had living relatives and friends.
 The complainant argued that the title of the item, “The Monster of Berhampore”, epitomised the stance of TVNZ that Mr Lake was guilty without any room for doubt. This was continued in TVNZ’s response, he argued, noting that TVNZ referred to Mr Lake being “identified as a sexual predator”. Further, TVNZ had said the programme raised questions about how complaints from “victims of child abuse” were handled. This had prejudged the question of whether the complainants were telling the truth, he said.
 Mr Robinson contended that the programme did not justify that conclusion. He wrote that, at best, the item had provided convincing evidence that Mr Lake would have a case to answer. The complainant submitted that there was no indication that TVNZ had examined any evidence that did not support the position that Mr Lake was guilty.
 Mr Robinson alleged that the broadcaster had been “deliberately dishonest and deceitful” in the information it presented. It had claimed that Mavis Van Dalen was providing “startling new information” when it must have known that was untrue. Mr Robinson argued that Ms Van Dalen was only able to present hearsay evidence of what the complainants had told her. He contended that a review of the interview tapes would confirm whether TVNZ was being deceitful in the “selective reporting” of her interview.
 Responding to TVNZ’s claim that Sunday’s journalists had conducted a “full and thorough” investigation, the complainant submitted that there was no evidence of this. Rather, he alleged, the investigation was characteristic of journalists who had formed a belief about what they thought had occurred, and only collected evidence to fit that viewpoint. Mr Robinson noted that TVNZ had:
 Mr Robinson also suggested that the Authority obtain the unedited interviews with Trevor Roberts to ascertain whether he had provided TVNZ with additional information about the complainants’ credibility. Mr Robinson argued that it would have been a serious omission if TVNZ had failed to present this information.
 Mr Robinson also suggested that the Authority compare the Sunday programme with the two earlier Holmes items referred to by TVNZ. He submitted that the earlier programmes were broadcast in 2004 while Mr Lake was still alive, and more care had been taken to ensure that viewers knew the accusations were only allegations, and not facts.
 In the complainant’s view, there was no justification for labelling Mr Lake as “The Monster of Berhampore” in the 2005 item. The only new information was that the police had concluded Mr Lake had a case to answer, and were about to lay charges when he died. Mr Robinson argued that this did not warrant the statement that Mr Lake had been identified as a sexual predator.
 Referring to TVNZ’s remark that Mr Lake had refused to be interviewed in 2004, the complainant contended that there was no reason why Mr Lake should have subjected himself to a trial by media. Mr Robinson referred to the Authority’s Decision No. 2004-115, in which it stated that “a refusal to appear on a programme does not of itself relieve a broadcaster of its obligations”. He pointed out the following statement by the Authority:
When a person declines to participate in a broadcast, the broadcaster must ensure that viewers and/or listeners are aware that the issue being discussed is controversial and that there are other significant points of view. Often this can be achieved by, for example, the interviewer explaining the other points of view and/or adopting a devil’s advocate approach.
 Mr Robinson submitted that the programme had boldly made a declaration that Mr Lake was guilty of a serious crime. In the interests of fairness and balance, he said, TVNZ should have disclosed all the significant information that had led it to make that declaration. The programme had not referred to Mr Lake’s denials of the allegations, Mr Robinson noted.
 Mr Robinson disagreed with TVNZ’s claim that the journalists “had to make the choice” of whether to believe Mr Lake or the complainants. He contended that this explained why the programme had breached standards of fairness, because the journalists had only presented their belief that Mr Lake was guilty.
 With respect to his complaint about the “spooky” background music, the complainant noted that TVNZ did not dispute that description of the music. TVNZ’s response that the music was appropriate was further evidence of the broadcaster’s stance that Mr Lake was guilty, he said, and showed bias.
 Mr Robinson referred to TVNZ’s response that the programme made it clear that some disputed the guilt of Mr Lake, using the example of Trevor Roberts. However, he said, Mr Roberts had only stressed the importance of “finding the truth of the matter”. The complainant noted that in a subsequent interview on National Radio, Mr Roberts had stressed that he did not know whether abuse occurred or not.
 In conclusion, Mr Robinson stated that fairness, balance and respect for the principles of law were absent in the programme. He argued that these standards should not be lowered because the broadcaster could not be subject to a defamation action.
 In response to the referral, TVNZ offered no further submissions on the substance of the complaint, other than to note that the matter was one of overwhelming public interest.
 In his final comment, Mr Robinson agreed that the matter was one of public interest, but disagreed that this gave licence to a broadcaster to depart from broadcasting standards.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mr Robinson’s law and order complaint focuses on his concerns that this item treated as established fact serious but unproven criminal allegations against Mr Lake. Mr Robinson maintained that the programme contravened the fundamental principle of the justice system that an accused is presumed innocent until proven guilty.
 Mr Robinson, in the view of the Authority, has misunderstood the nature of that presumption. The presumption reflects the principle that the state may not punish someone for a crime before it has been proved that they in fact committed the offence. It does not operate to prevent media from broadcasting allegations supported by evidence – or even drawing conclusions – about acts a person is said to have done.
 The intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. The Authority has in the past found that the standard has been breached where presenters or participants have threatened violence, or participants have been actively encouraged to break the law.
 As there is no suggestion that this occurred in the present case, the Authority does not uphold the law and order complaint.
 In his original correspondence to the broadcaster, Mr Robinson outlined only one plank to his complaint alleging a lack of balance – that TVNZ had ignored the possibility that Mr Lake may be innocent.
 In his referral to the Authority, Mr Robinson expanded considerably on this complaint, to include allegations that:
 Under the Broadcasting Act 1989, the role of the Authority is to review the broadcaster’s decision on a formal complaint. On referral to the Authority, therefore, a complainant may not raise additional matters that were not included in the original complaint to the broadcaster.
 None of the matters listed above were canvassed in Mr Robinson’s original complaint to TVNZ. Accordingly, the Authority limits its determination to considering the issue Mr Robinson did raise in his formal complaint – his allegation that the programme was unbalanced in that it neglected to address the possibility that Mr Lake may have been innocent of the crimes alleged.
 The first issue for the Authority when determining a complaint about balance is whether the programme discussed a controversial issue of public importance. The Authority considers that this programme in fact canvassed two such controversial issues.
 First, the programme examined the actions of the Presbyterian church once it had been made aware of the allegations that Mr Lake abused children while running a Presbyterian Support Services children’s home. It is a matter of grave concern to the public that issues of sexual abuse of children, even historic allegations, have been addressed appropriately by those in authority.
 Second, the programme also discussed Mr Lake’s guilt in respect of these allegations; in discussing how the matter had been handled by the Church authorities, the programme also had to address the issue of whether Mr Lake committed the abuse alleged. Again, this is an issue of public importance – there is considerable public interest in whether a person placed in charge of children is guilty of widespread abuse.
 It is in respect of only the second of the two issues that Mr Robinson claims that the programme was unbalanced.
 The balance standard requires that programmes discussing controversial issues must make reasonable efforts to present “significant points of view”. The Authority accepts that the programme provided substantial evidence of Mr Lake’s guilt, through the first-hand accounts of former residents of the children’s home. It also accepts that the programme did not actively present the other obvious point of view – that Mr Lake may be innocent – beyond the brief comments from Trevor Roberts.
 This programme was the culmination of a lengthy and seemingly comprehensive investigation by TVNZ. That investigation revealed a considerable body of evidence suggesting that Mr Lake had committed numerous acts of abuse. In preparing this programme, TVNZ on three occasions contacted Mr Lake’s solicitor, seeking to interview members of Mr Lake’s family. The family declined to participate in the programme. Had they agreed to participate, they may have provided a voice in support of Mr Lake, and enabled the programme to offer different perspectives on Mr Lake’s alleged guilt.
 In the present case Mr Lake’s solicitor and family were the most obvious – and perhaps only – source for an alternative perspective. The Authority notes that in cases involving allegations of sexual offending, there are generally only two perspectives that matter – that of the victim and that of the alleged perpetrator. If the alleged perpetrator is deceased, then that person’s solicitor or family would be the only people who may be able to provide that perspective.
 For this reason. the Authority concludes that in contacting Mr Lake’s solicitor and family, TVNZ made reasonable efforts to obtain the other significant perspective balancing the allegations of abuse.
 This finding, however, does not derogate from a broadcaster’s responsibility to achieve balance by other means, or to broadcast other available information which could have balanced the programme in the absence of comment from Mr Lake’s solicitor or family.
 Mr Robinson alleged that the programme was one-sided and inadequate, and maintained that the programme could have provided balance in a number of ways:
 Despite raising these concerns, Mr Robinson has not identified any concrete information that TVNZ could have used to balance the allegations. While Mr Robinson suggests that the allegations contained “inconsistencies”, and that the complainants may have had other motives for making the allegations, the Authority sees no evidence of inconsistencies, and considers Mr Robinson’s unsubstantiated comments about the complainants’ motives to be purely speculative.
 In terms of the complainants’ credibility, the Authority notes that the Presbyterian Support spokesperson, Trevor Roberts, indicated that he held concerns, but made it clear that he did not intend to comment further about that matter. In light of Presbyterian Support’s unwillingness to elaborate, there was little that TVNZ could do, in the opinion of the Authority, to further this issue.
 Mr Robinson also suggested that TVNZ should have talked to former residents who could have offered positive comments about Mr Lake, relating to his time at the children’s home. The Authority notes that general positive comments about Mr Lake, even had TVNZ been able to find someone to make them, could not have provided any balance to the specific accusations of abuse being made by the former residents interviewed in the programme.
 For the above reasons, in light of the fact that the family declined to participate, and because Mr Robinson has not pointed to any information that TVNZ could have used to provide balance in the absence of the family’s comment, the Authority concludes that the programme did not breach Standard 4.
 The Authority records that it feels a degree of discomfort with a programme that makes assertions of serious criminal conduct – even such apparently well-supported assertions – against a person who has died. There is no question that a programme such as this indelibly blackens the reputation of its subject, who no longer has an opportunity to defend themselves, either in the media, or during a criminal trial.
 Nevertheless, the Authority considers that in all the circumstances of this case, TVNZ made reasonable efforts to present alternative points of view, and in the absence of other available information refuting Mr Lake’s guilt, the balance complaint does not succeed.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
28 November 2005
The following correspondence was received and considered by the Authority when it determined this complaint: