Complaint under s.8(1)(a) of the Broadcasting Act 1989
Trial by Ordeal – documentary – examined three jury trials of John Barlow charged with double murder – questioned fairness in view of the length of the process – interviewed some participants and set up mock jury to hear evidence – allegedly gratuitous murder reconstructions, offensive and unnecessarily violent, and favoured defence over prosecution
Standard 1 (good taste and decency) and Guideline 1a – context – not upheld
Standard 4 (balance) – opposing perspectives advanced – not upheld
Standard 10 (violence) and Guidelines 10b (cumulative effect) and 10f (repeated gratuitously) – reconstructions, while gruesome, were not gratuitous or repeated unnecessarily – not upheld
This headnote does not form part of the decision.
 Trial by Ordeal was a documentary broadcast on TV One at 9.00pm on 12 February 2004. It examined the conviction of John Barlow, after three jury trials, for the murders of Eugene and Gene Thomas. The programme questioned the fairness of the length of time the process had taken and included interviews with some police officers, the prosecutor, defence counsel and members of the defendant’s family. The programme concluded by asking an invited “jury” to “hear” the evidence so that its deliberations could be observed.
 Chris Bryan complained to Television New Zealand Ltd, the broadcaster, that the programme breached the standards relating to good taste and decency, violence and balance.
 The programme made use of reconstructions and Mr Bryan contended that the good taste and decency standard had been contravened in view of the repeated “flashbacks” to the scenes of the bodies covered in blood which he described as unnecessary and gratuitous. He noted that the broadcast had been preceded with a warning about violence, but he considered that the “constant repetition” of the gruesome scenes, which were overly explicit and prolonged, breached the standard relating to gratuitous and excessive violence.
 Pointing to the documentary’s title which set its emotional tone - Trial by Ordeal - Mr Bryan said that the interviews with the accused were not balanced by the interviews which dealt with the Crown case. Further, he complained, the “pseudo jury” which, he said, included some members who were unable to reach a verdict “reinforced doubt about the case”.
 TVNZ assessed the complaint under the standards in the Free-to-Air Television Code of Broadcasting Practice nominated by the complainant. They read:
Standard 1 Good Taste and Decency
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.
1a Broadcasters must take into consideration current norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs. Examples of context are the time of the broadcast, the type of programme, the target audience, the use of warnings and the programme’s classification. The examples are not exhaustive.
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 10 Violence
In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.
10b Broadcasters should be mindful of the cumulative effect of violent incidents and themes and should avoid any impression that violence is dominating a single programme, a programme series, or a line-up of programmes screened back-to-back.
10f When real or fictitious killings, including executions and assassinations, are shown, the coverage should not be explicit, prolonged, or repeated gratuitously.
 TVNZ said that Trial by Ordeal was “a serious documentary about a matter of public interest and concern”. Because murder involved violence, TVNZ commented, it would have been inappropriate to sanitise the scenes. Because of the nature of the crimes, it continued, it was screened half an hour later than normal for a documentary lasting more than one hour, it was classified AO, and the warning specifically drew viewers’ attention to the reconstructions by noting that the programme contained “scenes that may disturb”. Expressing the opinion that viewers were able to make an informed choice, TVNZ wrote:
It seemed to the [complaints] committee that the crime and mortuary scenes were not used gratuitously. Every scene seemed to have a reason for being there, usually because it was directly related to what someone said in an interview or in a comment. The scenes were illustrative and repeated only when they were germane to a point raised by someone speaking in the programme.
 Arguing that the reconstructions were used in an illustrative manner, and not in a gratuitous or unreasoned way, TVNZ declined to uphold the Standard 1 (good taste and decency) aspect of the complaint.
 TVNZ said that the arguments relevant to Standard 1 also applied to Standard 10 (violence). Murder was a violent crime, it again stated, and the reconstructions involving blood were used to demonstrate the Crown’s case. Pointing out that the mortuary and killing scenes totalled five or six minutes in a documentary lasting 70 minutes, but accepting nevertheless that they were disturbing, TVNZ pointed to the warning which had been broadcast. It did not accept that the scenes had transgressed Standard 10.
 Turning to the requirement for balance in Standard 4, TVNZ said that it did not accept that the title had set a tone of sympathy for Mr Barlow. The trials, it averred, were an ordeal for all involved, including the jurors. Rather, TVNZ stated, the programme had tried to explain why the “ordeal” was necessary. John Barlow, it noted, was the only person in New Zealand to have faced three trials as a result of hung juries and, TVNZ said, the programme had asked whether what had happened had been fair. Both sides of the case, it contended, had been heard throughout the programme.
 TVNZ advised that the Thomas family had been approached before the programme was made, but had declined to participate. It commented:
Even though the Thomas family did not take an active part in the making of the programme, the view of Eugene Thomas’s widow, Margaret, was included, using the only available piece of archive footage. The [complaints] committee felt you may have missed the section in the documentary in which Mrs Thomas, surrounded by her family, gave an interview outside the building where her husband and son were murdered. She stated that she was glad the family’s long ordeal was over and that they felt the right man had been convicted.
 TVNZ rejected the complaint that the interviews with the Crown witnesses were limited, pointing out that nine key witnesses for the Crown participated as compared with six for the defence. Furthermore, the Crown Solicitor had been given special dispensation to appear. TVNZ also noted that no complaints had been received from anyone who participated in the programme.
 As for the complaint about the “jury” used for the programme, TVNZ said it did not understand the basis of the complaint. Two real juries, it observed, had failed to agree and:
The “television jury” was an attempt to enlighten viewers about what goes on in the jury process that can lead to indecision and hung juries.
 TVNZ declined to uphold the Standard 4, balance, aspect.
 When he referred the complaint to the Authority, Mr Bryan said that TVNZ had given insufficient attention to the programme’s approach to the judicial process which, he said, “appeared designed to cast doubt on the credibility of the guilty verdict”. He stated that he had seen the interview with Mrs Thomas but, as it had been recorded some years earlier, he did not regard it as relevant to the programme.
 TVNZ accepted that it would have been preferable to have had recent comment from the Thomas family. However, as was their right, they had declined to participate. TVNZ stated that it was better to rebroadcast the earlier comments, which remained relevant, rather than have nothing.
 Mr Bryan emphasised that his complaint focused on what he described as the constant repetition of the gratuitous reconstructions. It would be misleading, he said, to focus on Mrs Thomas’s participation.
 The members of the Authority have viewed the item complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The Authority accepts that the programme Trial by Ordeal made frequent use of graphic reconstructions to illustrate the points being made, and that some of the same reconstructions were used on a number of occasions. The Authority’s task is to determine whether the reconstructions were unduly graphic or their use unnecessarily repetitive.
 When the Authority determines a complaint which alleges a breach of Standard 1 (good taste and decency) it is required to take contextual factors into account. Context is relevant to, but not determinative of, the complaint.
 The Authority considers that the following contextual factors were relevant in deciding whether Standard 1 was contravened:
 Murder is a horrific event. As with the murders of Eugene and Gene Thomas, it is often a visually gruesome event. Taking into account these points, together with the contextual factors listed above, the Authority considers that the use of graphic reconstructions complied with Standards 1 and 10. As the programme was a detailed account of the murder and the trials, the Authority also concludes that the reiteration of the graphic reconstructions, albeit horrifying when viewed in isolation, was not gratuitous. The Standard 1 (good taste and decency) and Standard 10 (violence) complaints are not upheld.
 Mr Bryan also submitted that the broadcast breached the requirement for balance in that it was designed to cast doubt on the credibility of the jury verdict. He questioned first what was the “ordeal” to which the programme’s title referred, secondly the use of a “pseudo jury”, and thirdly, the use of archival footage in which Mrs Thomas responded to the jury’s verdict of guilty.
 The Authority considers that the “ordeal” dealt with in the programme was the gruelling legal battle which three trials had involved. It considers that the jury system was on trial and the word “ordeal” had not been used to elicit sympathy for the accused. The Authority accepts that it was an ordeal for the accused, as it was for all the participants.
 As to the use of a “mock” jury, the Authority considers that while viewers may have been given too little information about why this device had been used and, for example, what evidence the “mock” jury had heard, it did not, in its opinion, impact on the item’s balance about its examination of the criminal justice processes involved in the three trials of John Barlow for the murders of Eugene and Gene Thomas.
 In reaching a decision on the complaint that the programme was unbalanced, the Authority points to the participation of both the Crown Prosecutor and senior defence counsel. It observes that it is unusual for a Crown Prosecutor to participate in a programme examining one case. The Crown Prosecutor’s participation on this occasion helped ensure that the programme met the requirements of Standard 4 (balance).
For the above reasons above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
1 July 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Chris Bryan’s Formal Complaint to Television New Zealand Ltd – 6 March 2004
2 TVNZ’s Response to Mr Bryan – 7 April 2004
3 Mr Bryan’s Referral to the Broadcasting Standards Authority – 26 April 2004
4 TVNZ’s Response to the Authority – 10 May 2004
5 Mr Bryan’s Final Comment – 22 May 2004