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Smith and TV3 Network Services Ltd - 2003-006

Dated

13th February 2003

Number

2003-006

Programme

20/20: "The Goons"

Channel/Station

TV3

Broadcaster

TV3 Network Services Ltd


Complaint
20/20 "The Goons" – item about Christchurch Prison Emergency Response Unit – inaccurate, unfair and unbalanced

Findings
Standards 4 – balance of perspectives aired – no uphold

Standard 5 – inaccuracies (i) did not "order" penis incident; (ii) not found guilty of 21 breaches of code of conduct – uphold on these 2 points – no other inaccuracies

Standard 6 – complainant no opportunity to present views – uphold

Order
Broadcast of statement

This headnote does not form part of the decision.


Summary

[1] "The Goons", an item on 20/20, was broadcast by TV3 at 7.30pm on 9 June 2002. The item investigated the activities of the Christchurch Prison Emergency Response Unit (ERU), referred to by some as the "Goon Squad".

[2] Doug Smith complained to TV3 Network Services Ltd, the broadcaster, that the item contained a number of inaccurate statements, and was unbalanced. Mr Smith, a member of the Unit, also said that the programme was unfair and had caused him "immense embarrassment".

[3] In response, TV3 said that based upon its investigation, all material information in the programme was accurate. It stated that, despite Mr Smith’s refusal to be interviewed, the programme was balanced and he had not been treated unfairly. It said that any embarrassment and damage suffered by Mr Smith arose from his involvement within the Unit and not from the programme. It declined to uphold the complaint.

[4] Dissatisfied with TV3’s response, the complainant referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint in respect of two inaccuracies, and the fairness aspect of the complaint. It declines to uphold the other aspects of the accuracy complaint and the balance aspect of the complaint.

Decision

[5] The members of the Authority have viewed a tape and read a transcript of the programme complained about, and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] 20/20 is a current affairs programme broadcast by TV3 at 7.30pm. On 9 June 2002 it featured an item called "The Goons", which was an investigation into the activities of the Christchurch Prison Emergency Response Unit, known by some people as the "Goon Squad".

The Complaint

[7] Doug Smith complained to TV3, the broadcaster, that the item was inaccurate, unbalanced and unfair. Mr Smith wrote that the programme overstated and sensationalised an incident in which he was involved, and contained a number of factual inaccuracies. He also stated that the programme was biased and unfair, and had caused him "immense embarrassment and stress". He referred to an incident in a tavern reported in the programme, related by a former Unit member in a hearing before the Employment Court, who said that he had placed his penis on the bar and Mr Smith had hit it with a beer bottle.

[8] Mr Smith wrote:

During the item, reporter [Phil Vine] stated that the Unit had bizarre methods of testing obedience to orders and used this as a springboard to make the assertion that I had ordered Mr Alistair Thompson, a member of the Unit, to place his penis on a bar while I hit it with a beer bottle. This statement is not true and was never raised in this form at Court (or in any other official forum).

[9] Mr Smith denied any such orders had been given to Mr Thompson. When Mr Thompson placed his penis on the bar, he advised that he had responded to Mr Thompson by tapping it with a bottle and telling him to "put it away". Mr Smith said that it was not a brutal act and alleged that the reporter had "seriously overstated the incident". However, it had been used to "portray that the Unit had bizarre rituals for enforcing discipline". Mr Smith maintained "this is not the case and was not stated as such in evidence". Mr Smith also noted that the programme included Mr Thompson’s denial that the incident was the "result of the macho image maintained by the Unit".

[10] At the end of the item, Mr Smith stated, he was again referred to in relation to the incident, and his work-place details were disclosed. He argued that the incident was disputed, and as a consequence, the report was "inflammatory and misleading".

[11] In addition to the specific incident discussed above, Mr Smith went on to detail a number of items in the programme that he alleged were unbalanced, inaccurate and unfair. They were as follows:

the claim that the Unit was "secret" was inaccurate because it was authorised by Corrections’ National Office, was common knowledge among national prison staff, and by inmate interest groups;

the claim that rumours that had emerged from the prison about the Unit were true. Mr Smith said that the rumours had been investigated and found to be untrue;

that issues reported on the programme were the subject of an Employment Court hearing and were yet to be determined. Mr Smith said it was "irresponsible to state that this is fact when it has yet to be established as being so";

that the physical abuse allegations raised by Ms Dunstall (a member of the Howard League) were not the subject of any inmate complaint, or heard as evidence in Court, and were false. Mr Smith stated that he had not heard of these allegations before they were raised in the programme. He rejected them as "completely untrue" and considered that they were based on Ms Dunstall’s own views, rather than on facts. In Mr Smith’s view it was "totally irresponsible and reckless" to broadcast these unsubstantiated allegations as they gave a "false picture";

that the statement by the reporter that Mr Smith was found guilty of 21 breaches of conduct was untrue. Mr Smith said that an investigation initially recommended 21 breaches, but that he was allowed to address those matters prior to any disciplinary action being taken and his senior managers overturned the "vast bulk of those findings";

that it was reported in the item that the head of the employment investigation, Maureen Love, stated in Court that the "leadership of the Unit was corrupt", when in fact she had said that there were "corrupt practices". Mr Smith argued that the item’s wording was "misleading" and led to the impression that he was corrupt. Mr Smith stated that he had never been considered corrupt by his managers;

that he advised a TV3 producer, who requested an interview, that the Department of Corrections media policy prevented him from doing so. Nonetheless, the reporter and camera crew "ambushed" him, asking him a series of questions, and filming him for several hundred metres. Mr Smith said that, despite his advice to the producer, he was placed in "an embarrassing position";

that the programme was biased in that it did not report the evidence which was given in Court in response and rebutted the claims being made. Mr Smith said that viewers were left with a "distorted impression of what actually transpired". He stated that the item was "rampant sensationalism with little or no effort being made to portray a balanced and factual account"; and

that as a result of the "biased programme", he had been subjected to "credibility challenges" and had missed a job opportunity. Mr Smith said he had suffered embarrassment and stress as a result of the programme, which he described as a "blatant example of misreporting".

[12] Mr Smith also referred to a news report broadcast by TV3 on 15 May 2002, which reported on the Court case, and stated that the members of the Unit only dressed in black. Mr Smith said this was false, as the Unit rarely wore black, and did so only when directed by the Unit’s manager. He stated the officers of the Unit wore green overalls with their name badges attached.

The Standards

[13] TV3 assessed the complaint against the standards in the Free-to-Air Television Code of Broadcasting Practice nominated by Mr Smith. The relevant Standards read:

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 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.

The Broadcaster’s Response to the Complainant

[14] TV3 declined to uphold the complaint. It considered each of the allegations made by Mr Smith.

Bizarre methods of testing obedience and impact of allegations

[15] TV3 dealt with these issues together as it considered they related to the same allegation. TV3 said that it had considered two issues. First, the "bizarre techniques of team building", and second, the statement that Mr Smith was "the man who ordered the penis on the bar". TV3 held that there was "no dispute" that the penis incident was part of a team building exercise, and it concluded that the incident was "correctly categorised as bizarre".

[16] In respect of whether Mr Smith "hit" or "tapped" the penis, TV3 said it was satisfied that Mr Smith had hit Mr Thompson’s penis. It said that four eye- witnesses including Mr Thompson, who gave evidence to the Employment Court, had confirmed that the allegation was accurate.

[17] Despite Mr Smith’s denial that he had "ordered" Mr Thompson to place his penis on the bar, TV3 noted that Mr Smith did not deny that he required "unquestioning obedience", or refute the evidence regarding obedience made by another Unit member in the Employment Court. Nevertheless, TV3 said, it could not conclude whether Mr Smith did give such an order, because the "material on which the investigative team based the statement" was not "sufficiently unequivocal to enable us to determine accuracy beyond doubt". TV3 stated that before the reporters used the statement in the item, they should have "sought more collaboration (sic) of the statement".

[18] TV3 continued:

We accept the possibility that the statement may not be accurate. But, we cannot say with certainty that it is inaccurate. It simply cannot be determined one way or the other. It does seem to us more likely than not that you did either suggest or encourage the action taken by Mr Thompson. Our reasons are:

Our reporters were told (by a reliable source) that you had in fact given the order;

You were the head of a Unit renowned for its discipline and it is inherently unlikely (in the views of eye witnesses and others familiar with the operation of the Unit) that Thompson would have taken such an action without your encouragement or acquiescence.

[19] TV3 went on to consider whether, even if the statement was inaccurate, it contravened the Standard. It concluded that Standard 5 had not been breached, because the statement was not material in the context. In its view, the "more damaging allegation" was that Mr Smith had hit Mr Thompson’s penis, not that Mr Smith had "ordered him [Mr Thompson] to place it on the bar".

[20] TV3 wrote:

We consider that any adverse impact to you and your reputation and credibility arose from the programme as a whole and your involvement in all of the incidents reported rather that the particular statement you take issue with. After all, whether you were described as "the man who ordered the penis on the bar" or the "man who whacked the penis on the bar" the negative effect is the same. The damage to your credibility and the embarrassment to you would be no less severe.

[21] TV3 noted that Mr Smith had refused to be interviewed, and suggested that if he had taken up that opportunity, he would have had the chance to put forward his account of the incident.

[22] TV3 also found no breach of Standards 4 and 6 in relation to this aspect of the complaint. It contended that it had attempted to achieve balance and fairness in the programme by requesting an interview with Mr Smith and other Corrections Department representatives. TV3 stated that Mr Smith had refused to be interviewed despite his employer’s permission to do so. It reiterated its earlier comments that Mr Smith had been given an opportunity to put his version of events regarding the allegations against him. Therefore, the interview with the General Manager of Public Prisons, Mr Phil McCarthy, was given "prominence" and he was given the chance to comment on the allegations made against the Unit. It noted that it had included some of Mr McCarthy’s comments in the transcript referred to above. TV3 concluded:

We find that the inclusion of Mr McCarthy’s interview gave the programme the degree of balance required by the Standard. His interview also met the fairness requirement for the individuals referred to.

The Unit was Secret

[23] The statements made in the programme were:

There was a secret squad operation out of the prison, and it would take three years for the full extent of their activities to become known.

… started getting complaints in 1999, accumulating evidence on a secret emergency response group at Paparua prison.

[24] TV3 disputed Mr Smith’s claim that this allegation was inaccurate. It said that according to its research, the Unit was not widely known about, and it cited a number of facts and material that it found during its investigation that led to its conclusion. It found:

Corrections management in Wellington knew of the ERU but the activities of the squad were unknown to most staff, the general public and outside monitors;

the Howard League for Penal Reform had been trying for 3 years to get specific information on the ERU;

despite the death of an inmate in 1999 there was no public mention of the members of the ERU who were restraining him at the time;

a press release about disciplinary action against the complainant and two others in the ERU in May 2001 made no mention of the Unit;

after the ERU was disbanded, the management issues report was suppressed by the department until this year’s Employment Court case. The employment report produced at the same time had never been released despite many requests under the Official Information Act; and

the same management issues report said that senior management was often not advised of the true facts of operations, or was only partially advised.

[25] TV3 concluded that the statements in the item were not misleading, because it considered that the information that the investigation team obtained was "sufficient to support the allegation that the Unit was secret".

Rumours about the Unit were untrue

[26] The following statements were made in the item:

Phil Vine investigates the amazing stories that have emerged from behind bars in the South Island.

So what of these stories of a shadowy force of officers marching through the corridors of Christchurch prisons? Targeting inmates with laser sights? Humiliation, intimidation, and even a death.

When they first started filtering out of Paparua prison, these tales seemed incredible, like something from another country under some cruel regime. But even more incredibly they proved to be true.

These stories started to be confirmed from an unlikely source, former members of the squad itself. One agreed to be interviewed on the condition his identity and voice was disguised.

[27] In response to Mr Smith’s complaint that the rumours regarding the Unit were thoroughly investigated and found to be untrue or were yet to be determined, TV3 stated that its team that investigated the item "are firmly of the belief that the stories or rumours were true". It contended the following were substantiated:

the ERU held operations in the wings of the prison where they would march through at night dressed in black;

the complainant had admitted in Court that a laser beam was shone into the cells of prisoners;

ERU officers gave evidence in the Employment Court of their role in intimidating and humiliating inmates; and

Prisoner David Haimona died on 30 November 1999 while being restrained by the ERU.

[28] In respect of that aspect of the complaint, TV3 concluded that there was "substantial and sufficient undisputed evidence to support the statements" that were made in the programme.

Ms Dunstall’s Allegations

[29] In relation to that aspect concerning Ms Dunstall, a member of the Howard League. The following comments were made on the programme:

Kathy Dunstall:   People having their heads kneed, their heads banged against wall,
                          when they were strip searched their buttocks being forcibly separated.

                          It’s quite unacceptable…it’s outrageous.

Reporter:            This campaigner started getting complaints in 1999, accumulating
                          evidence on a secret emergency response group at Paparua prison.

[30] TV3 declined to uphold as a breach of Standard 5 the complaint that Ms Dunstall’s allegations of physical abuse were untrue and unsubstantiated, and gave a "false picture". It wrote:

Kathy Dunstall is a member of the Howard League. This organisation has been monitoring conditions in prisons in New Zealand since 1928. We understand that Ms Dunstall is a well-respected member of the Howard League and as such this [Standards] Committee finds she is an appropriate person to comment on the investigation. Her comments were not, we find, reported as facts but as genuine complaints made to her by prison inmates about the Unit.

Breaches of Conduct and Interview

[31] Mr Smith complained that the segment which filmed him leaving the Court and declining to answer a series of questions about the number of breaches of conduct was unbalanced, inaccurate and unfair. However, TV3 concluded that the Standards had not been contravened because the item made it clear that some of the initial recommendations in the employment investigation were overturned. The relevant passage in the item was as follows:

Reporter:    The internal report found 56 breaches of the Code of Conduct and
                  recommended the Goon Squad leaders all be fired, but Corrections
                  disputed some findings and the recommendation was rejected.

Reporter:    You were found guilty of 21 breaches of conduct Mr Smith. How does that
                  make you feel? Do you think you should lose your job?

Mr Smith:    I’ve got no comment.

[32] In relation to being interviewed, Mr Smith advised that, due to his employer’s media policy, he was prevented from giving an interview. TV3 argued that Mr Smith was given the opportunity to present his views on the issues raised, and while at the time of filming Mr Smith was unable to give an interview, he was subsequently permitted to do so by his employer, but chose not to.

Maureen Love and Black Apparel

[33] In respect of these two aspects of Mr Smith’s complaint, TV3 advised that they did not feature as part of this programme.

Conclusion

[34] TV3 declined to uphold any aspect of Mr Smith’s complaint as a breach of broadcasting standards.

The Referral to the Broadcasting Standards Authority

[35] Dissatisfied with TV3’s response, Mr Smith referred his complaint to the Authority. Mr Smith responded to the issues in the order considered by TV3, as follows:

Mr Smith recounted his version of the penis incident in further detail, expanding on the information in his formal complaint, and stated that there was no evidence that he had ordered Mr Thompson to place his penis on a bar as a "method of testing obedience". He denied that the incident occurred in the manner reported and argued it was a "spontaneous reaction by me to something done spontaneously by Mr Thompson". He added that the incident occurred in the early hours of the morning, and that "those who were present were intoxicated". Mr Smith advised that Mr Thompson was a personal friend to whom he would never intentionally cause any harm;

Mr Smith refuted the statement that the incident was a "bizarre team building exercise". He advised that it was simply a social function at the Kirwee Tavern, following a busy period at work, and in the lead up to the Y2K operation, in which the "Unit was to play a major part". Mr Smith reiterated that it was not an organised team building, but merely a "social get together for Unit members and their friends". Mr Smith did not dispute that the incident occurred, but disputed, first, the manner in which it was portrayed, and second, the inference that this sort of incident was commonplace to the Unit. He argued that this sort of incident would be common in bars throughout the country, but that it had been linked to the Unit and "blown completely out of proportion for the purposes of sensationalist journalism";

As to whether Mr Thompson’s penis was "tapped" or "hit", Mr Smith maintained that Mr Thompson never advised that he was "ordered" to take the action that he did, and did not elaborate on the details of the incident because he was not asked to. In reference to the segment shown on Mr Thompson’s evidence on this aspect, Mr Smith wrote "Mr Thompson answered a direct question with a direct answer";

Mr Smith repeated his denial that he had ordered Mr Thompson’s actions as a part of a demonstration of the "level and degree of unquestioning obedience expected" from Unit members. He maintained that Mr French’s comments – " He told us, You’ll stand the way I tell you …" were taken out of context, because they were made several months after the incident at the Kirwee Tavern, and at a time when the Unit was "dysfunctional" and Mr French was "under scrutiny for a number of serious issues". Mr Smith said that Mr French’s comments were "allegedly made at a meeting held immediately before the Unit disbanded" and referred to a proposed restructuring that did not eventuate;

Mr Smith said it was true that "unquestioning obedience" was required, and that he and others had explained this in Court. He advised that "staff were trained to be obedient at times of operational deployment" and that this was for safety reasons. Mr Smith noted that at other times staff often voiced their own opinions and challenged ideas, and wrote:

Again, a lack of balance exists where the words of Mr French are quoted verbatim because they are sensational. Evidence of rebuttal is conveniently ignored for "journalistic" reasons;

In response to TV3’s conclusion that it could not determine whether Mr Smith had "ordered" Mr Thompson to place his penis on the bar, Mr Smith said that the matter should not have been reported, in the "interests of natural justice and common decency". He said that if any uncertainty was apparent about the veracity of the statement, responsibility should have dictated caution;

Mr Smith did not accept TV3’s reasoning that, although it could not determine the accuracy of the statement, nonetheless it considered that Mr Smith had encouraged the action taken by Mr Thompson. Mr Smith suggested that TV3 should have considered the "possibility" that its informants were not providing accurate information. Mr Smith noted that Mr Thompson "has an extroverted personality" which was well known within the Unit. In addition, Mr Smith argued that the "discipline that existed within the Unit remained within the Unit." It was not a part of social functions, and all ranks socialised together outside of work, he said;

Mr Smith disagreed with TV3’s argument that even if the statement were inaccurate, it did not contravene Standard 5 because it was not material. He wrote:

A report that a superior ranking officer ordered a junior officer to undergo a serious assault as a means of testing obedience, when both were drinking and off duty is bound to attract enormous attention from the public. As such it should be properly and thoroughly investigated and verified before publicly broadcasting the assertion as fact. In this case, the only "eyewitnesses" to this incident have a vested interest in the outcome of the Employment Court hearing and as such should have been treated with due caution. It seems Mr Vine did not bother to interview the Publican or staff of the Kirwee Tavern over the matter – and if so he has not reported on their accounts of the incident. (His emphasis);

In relation to TV3’s submission that had Mr Smith been interviewed, he would have had the opportunity to rebut the allegations, Mr Smith reiterated his earlier advice that he had refused because his employer did not allow media interviews, and he had explained this at the time. Nonetheless, he was "hounded" by reporters and camera crews. Mr Smith advised that his employer had not offered him the opportunity to be interviewed by any media. Mr Smith stated that TV3’s opinion on the issue was "self-serving" and he considered fell short of "what is required of responsible broadcasters";

Mr Smith said that Mr McCarthy, General Manager of Public Prisons who featured in the item, did not have the detailed knowledge of the allegations raised in order to provide balance and meet the requirements of fairness in the programme. Mr Smith reiterated that he was not able to be interviewed, and he did not agree with TV3’s contention that, despite no comment from him or other Corrections Department representatives, Mr McCarthy’s interview on the programme achieved the requisite balance and fairness;

In reference to the statement that the "Unit was secret", Mr Smith maintained that the Unit was widely known about by many organisations. He argued that although some of the work undertaken by the Unit was sensitive and therefore not publicly disclosed, in general its activities were transparent – the Unit was "run openly and was the subject of peer and other internal reviews throughout its existence". Mr Smith claimed that it was incredible to state that a large number of staff were unaware of the Unit’s activities. He said that the Unit held "open-days" for the Ombudsmen, Prison Inspectorate, nurses and staff. In addition, staff (sometimes large numbers) were recruited to assist with most operations that the Unit conducted, and that these activities were "predominantly conducted within the prison in full view of staff and inmates alike". Also the Unit had on-going regular contact with visitors and others from the general public, Mr Smith said. He explained that the reason that the Unit was not specifically mentioned in relation to Mr Haimona’s death was that it would have resulted in pressure on a specific group of 11 officers, as opposed to the larger Corrections staff group;

Turning to TV3’s statement that "rumours about the Unit were true", Mr Smith referred to each of the points made by TV3 in support of its conclusion (refer para [27]). He refuted the points as follows:

officers wore black overalls irregularly, the majority of tasks were carried out during the day wearing green overalls with officers’ name tags attached;

the laser light was trialled at night during "silent operations" to point to cell doors and other interest areas. This was investigated both internally and by the Ombudsmen’s Office. He stated "Again the rebuttal was not reported, just the allegation";

the evidence of Mr Nielson, who supported the Employment Court action, was rebutted by other Unit staff and by Police staff who were present at the time. Mr Smith stated that the Unit always conducted its work in the company of independent staff who would have been aware if they were "intimidating and humiliating inmates". Mr Smith contended that Mr Nielson’s evidence was an "absurd notion"; and

Mr Haimona’s death was fully investigated and Mr Smith believed that the Coroner would be positive regarding the actions of the ERU’s handling of the incident. Mr Smith stated that the programme did not mention that ERU officers involved were better trained and experienced to deal with those situations, and as a result improved the safety of the staff and inmates involved.

Mr Smith disagreed with the TV3’s conclusion that there was "substantial and sufficient undisputed evidence to support the statements" in the item. He argued that the allegations were contested in Court and continue to be disputed. While these views were not aired in the programme, and although Mr Smith argued that did not mean that the evidence was undisputed he did agree that there was "substantial and sufficient" evidence available to TV3;

Mr Smith took issue with the allegations raised by Ms Dunstall. Specifically, in relation to the claim that Mr Haimona’s death being "preventable", he argued that the circumstances were such that justified the action taken by the staff, and that there were no other options available. He reiterated the evidence given by a pathologist in the Coroner’s Court regarding Mr Haimona’s health which might have been a factor accounting for his death. In relation to the comments regarding the "culture" of the Unit, Mr Smith said that those allegations were also disputed in the Employment Court, but that was not reported in the item. Referring to inmate complaints, Mr Smith stated that some of the ERU’s activities were unpopular with inmates and as a result were the subject of complaints, "most of which were proven to be unfounded." Mr Smith contended that the Unit was successful in reducing the amount of drugs brought into the prison, which led to visitors being banned for a period of time. Mr Smith said that this was consistent with the Department’s policy to reduce drugs and re-offending, and "should be praised";

In reference to the issues of breaches of conduct, Mr Smith said that the programme was "misleading" because the "vast majority of the findings were rejected". Mr Smith stated that this must raise questions regarding the "nature and quality of the investigation"; and

In relation to the issues relating to "Ms Love" and "black apparel", Mr Smith advised that they related to a news broadcast on 15 May 2002 on TV3.

[36] Referring to the concept of "freedom of expression", Mr Smith concluded that while he agreed with the concept, he considered that it must be "tempered with reason and balance". He wrote:

It is unreasonable in my view to make allegations against somebody when there is a lack of evidence and particularly when that person is constrained from making comment in defence. I was not allowed to participate in an interview, as I have repeatedly stated.

[37] Mr Smith also referred to three news items broadcast on TV3 in relation to the Employment Court case, as well as the 20/20 promo broadcast on this item.

The Broadcaster’s Response to the Authority

[38] In its response to the Authority, TV3 stated that the news item complaints raised by Mr Smith, were outside the 20 day period for making a complaint.

[39] TV3 made a preliminary submission on the evidential matters raised by the complainant. It submitted that it had confidence in, and relied upon, the statements made to it by its reporters and researchers. TV3 advised that it had not conducted an independent inquiry into the factual disputes that existed between the statements broadcast and the position of the complainant. It stated that, when considering the evidential issues raised by the complaint, it took a "position on the facts in favour of the complainant". It suggested that factual disputes were clearly evident in relation to the Kirwee Tavern incident and Mr Smith’s opportunity for a pre-broadcast interview, and that a formal hearing would be necessary to determine the issues, if they were to be resolved.

[40] TV3 said that Mr Smith was invited to comment on the allegations prior to the broadcast of the programme. It contended that Mr Smith’s employer did permit the interview, but that Mr Smith refused. TV3 fully detailed the efforts that both the producer and the reporter made in order to interview Mr Smith prior to broadcast, noting that it had arranged for the Department to lift its ban on employees talking to the media in regard to Mr Smith.

[41] Having fully outlined its efforts, TV3 concluded that it had made "genuine and persistent attempts" to obtain Mr Smith’s input and views prior to the broadcast of the item.

[42] In relation to the Kirwee Tavern incident, TV3 said that it had not suggested that the incident was a "serious assault", it had referred to it as "bizarre". It advised that it had nothing further to add regarding this issue.

[43] Turning to the issue of "unquestioning obedience", TV3 detailed 20/20’s sources and their comments in support that the requirement existed, and which it noted that Mr Smith did not deny.

[44] As to the issue of the Unit’s secrecy, TV3 noted Mr Smith’s contention and advised that it could take the matter no further.

[45] In reference to the laser light incident, TV3 confirmed that it was Mr Smith who stated in Court that it belonged to him and that it was his idea. The broadcaster also transcribed the evidence of Maureen Love, former Human Resources Manager, who said:

there was an officer standing on a roof with all the lights turned off using a laser pointer to allegedly identify cells in which inmates were misbehaving.

[46] TV3 maintained that the programme was clear about the contrasting evidence of the Unit members given in Court. The allegation regarding "intimidating and humiliating inmates", it said was based on 20/20’s reporter’s investigation who advised:

That prisoners were "humiliated and intimidated" is evidence given by ERU members who carried out Mr Smith’s orders, interviews with prisoners and the Howard League bear this out, as does the Prison Service investigator Maureen Love.

[47] Referring to the coverage of Mr Haimona’s death in the item, TV3 noted that there was no Coroner’s report. It stated that the incident and the concerns regarding it were "part of the background to the report and not elevated beyond that in the item" or in its decision.

[48] Regarding Ms Dunstall’s comments on the programme, TV3 said that they had simply reported her views and concerns.

[49] TV3 made some general comments as follows:

It had acknowledged in its decision that the aspect regarding whether Mr Smith had "ordered" Mr Thompson to place his penis on the bar was the "only possible inaccuracy". It said as a result it had directed the reporters that when dealing with allegations of this nature they must be satisfied based on the evidence that the allegation is accurate. It considered that if that issue had been material, then it would have upheld that aspect of the complaint. However, it determined that in context, the "lack of collaborative (sic) or unequivocal evidence did not undermine the report." It contended that whether Mr Smith gave such an order or not, in its view the "damage and embarrassment" claimed by him arose from being a member of the Unit and was not solely attributable to that allegation.

It outlined a number of factors that had featured in the programme, and argued that in context it was unreasonable for Mr Smith to blame his difficulties on it and the reporter. It reiterated that in its view his situation stemmed from his membership of the Unit and not as a result of the programme.

[50] TV3 concluded:

The [Standards] Committee finds that this was an important and responsible piece of investigative journalism presented in a matter of fact but compelling way. It reported issues clearly in the public interest. There were difficulties for the reporters investigating the issues because of the environment in which the Unit operated. Further difficulties arose because of the reluctance of those involved to speak to the investigative team. Their reluctance is perhaps understandable but the consequence of refusing to be interviewed must have been apparent to them – the item would go to air without their input. It is never appropriate for a person referred to in a programme to refuse to be interviewed and later complain that their views were not adequately represented, provided a real opportunity for input was given, as it was here.

The Complainant’s Final Comment

[51] Mr Smith reiterated several comments made in his earlier submissions, and elaborated further upon a number of issues raised by TV3.

[52] As to TV3’s submission regarding complaints about the news items being outside the statutory 20 day period, he advised that he originally had no intention of filing a complaint based upon the TV3’s news reports. However, after viewing the 20/20 item, and receiving legal advice he believed that TV3’s presentation was "biased and contained flaws of fact". He then decided to make a formal complaint. Mr Smith wrote:

I do confess that I was ignorant of the twenty days maximum period in which to make such a complaint and I was also initially uncertain of the process to be followed. I do not believe it is reasonable for TV3 to side-step the issue base upon this simple technicality, however I will accept that as being the case if it is the finding of the Authority.

[53] Mr Smith responded to TV3’s comments on the evidential issues by repeating his earlier comments about the conflicting evidence, and arguing that there were matters of fact yet to be determined by the Judge. Mr Smith reiterated his earlier submissions that TV3 had relied upon the evidence of former members of the Unit, while overlooking "strong evidence of rebuttal by witnesses for the Department of Corrections".

[54] Mr Smith also disputed TV3’s claims that "genuine" efforts were made by TV3 to allow him the opportunity to comment on the allegations. He restated his earlier statements that approaches were made to him by TV3 reporters to which he had replied that he could not respond due to Corrections’ media policy precluding him from making comments to the media. Mr Smith submitted that his position was made clear to TV3, and he did not decline in the sense that he did not wish to be interviewed, but rather he declined because he was bound by his employer’s rules to do so.

[55] With regard to the pictures of him declining to be interviewed, Mr Smith stated:

The filming was done in the full knowledge that I was unable to say anything and the clear inference to me is that it suited the bias of the report to have images of me refusing to answer their questions as though I had something to hide. A full perusal of my evidence in Court will demonstrate that this was not the case and that I was open and honest in my recollection of events.

[56] Mr Smith said that, apart from the two instances already described when he was approached to comment, he never received an offer from TV3 to be interviewed. He also took issue with TV3’s statement that it did not have contact details for him. He claimed that his contact details were well known to a number of TV3’s "sources", and could have been easily obtained. He wrote:

I contest that there were genuine attempts to obtain input and comment prior to the programme. I was asked once in an elevator and I declined giving my reasons. I was then harassed two days later despite the producer having full knowledge of my position. Since then, TV3 has made no further attempt to contact me. To describe such a chain of events as genuine and persistent is something of a stretch of the definitions of those words.

[57] Mr Smith enclosed a copy of a letter he received from the acting Human Resources Manager for South Island Prisons which he said made it clear that he was not going to be permitted to be interviewed, and that his input was to be through Mr McCarthy. It noted that he had requested permission to be interviewed, and that pending that decision, his comments were to be sent to the Regional Manager, Mr Monk, which he did.

[58] With regard to the evidence relating to the "Kirwee Tavern incident", Mr Smith advised that the incident was never directly put to him during the Court case. Rather, it was referred to during the evidence of another witness. He wrote:

I believe that as I did not have the opportunity to respond to this topic in Court then it is irresponsible of TV3 to include it in their coverage of the Court hearing.

[59] The complainant also commented that although the Court case was essentially an employment dispute "the focus of TV3 both in news coverage and in the 20/20 programme was clearly upon the ‘bizarre’ allegations." Mr Smith wrote:

It is also interesting to note that the ERU was responsible for many far-reaching and insightful improvements to the managing of prisons in a safe and effective manner, none of these were explored to any great degree by 20/20.

[60] Mr Smith repeated his earlier concerns that the evidence reported by TV3 was not balanced against rebuttal evidence of ERU managers and "others who had witnessed ERU management and practice over a long period". Mr Smith also submitted that Ms Love’s evidence was "refuted by a number of witnesses during the trial".

[61] In reference to Ms Dunstall’s opinions on the culture of the Unit, Mr Smith contended that as an opponent of the ERU, she had never seen the Unit in operation, and that her views were based on speaking to inmates and dissatisfied staff. Mr Smith argued that opposition to a Unit of that nature, was expected from penal reformers and inmates.

[62] Mr Smith restated his earlier point that, contrary to TV3’s position, the ERU was never a "secret" Unit and that it was "widely known" about, often involving other agencies in its activities.

[63] As to the laser light incident, Mr Smith reiterated that it was not pointed at inmates, and that the officer Ms Love referred to, was on the roof "identifying cell doors".

[64] Responding to TV3’s comments on the evidence of ERU’s officers, Mr Smith acknowledged that there were "differing views expressed". He repeated his earlier submission that:

it is properly within the province of the trial judge to make a determination as to the credibility of the witnesses. It is not the role of an investigative journalist to try to influence that outcome by airing a slanted view prior to the decision of the Court being made available.

[65] In relation to TV3’s reporting of the death of the inmate, the complainant submitted:

It is true that the Coroner has yet to rule on this case. This should not have been included in the programme because there is a natural tendency to infer that members of the ERU were somehow responsible for his death. This is very misleading.

[66] Mr Smith commented further on TV3’s reporting of Ms Dunstall’s comments by submitting that prison officers who had worked with the ERU and who "could attest to their professionalism in dealings with inmates", should have been interviewed to effect balance in the programme.

[67] Mr Smith reiterated that he did not give Mr Thompson any order at the Kirwee Tavern, as alleged and that he had nothing to do with Mr Thompson’s actions. Referring to TV3’s point that Mr McCarthy denounced the behaviour, Mr Smith contended it was reasonable for any manager to be of the same view. However, in his opinion the whole incident had been "blown out of proportion" and exaggerated for sensationalist purposes. Mr Smith maintained that as the matter had not been investigated by Public Prisons the comments made were "in ignorance of the full facts".

[68] In regard to the reporting of his alleged breaches of the Code of Conduct, Mr Smith advised that 21 breaches were originally laid, but 16 were ultimately discontinued. However, Mr Smith noted that TV3 reported that he was found guilty of 21 breaches. He wrote:

This is a gross exaggeration of the facts and is akin to saying a man charged in court with 21 criminal offences but found guilty of five, was in fact convicted of all 21. This is irresponsible journalism and flies in the fact of natural justice.

[69] Mr Smith reiterated that he was not authorised by his employer to be interviewed, as evidenced by the letter referred to earlier, and that there was no question of "reluctance" on his part to speak, as alleged by TV3. He said although he was prevented from giving his views when approached at Court, TV3 had not subsequently invited him to participate in an interview.

[70] In addition to the letter referred to above, Mr Smith also attached an internal Department publication featuring Mr McCarthy’s opinion on various prison issues, including the media coverage of the ERU. Also a newspaper article headed "Ministerial Goon Squad Inquiry Out" dated 14 September 2002 was attached.

[71] In conclusion Mr Smith said:

I do not ‘lay my current difficulties’ at the door of TV3. Rather, I believe that as television is such a powerful medium, they should act responsibly and where necessary err on the side of caution. A reasonable standard must be expected at all times. To cover events spanning eleven months (the time the ERU was operational) and the eight days of evidence and to reduce it to the "bizarre" events of a couple of off-duty nights in such a trashy manner is not a fair portrayal.

The Broadcaster’s Response to the Final Comment

[72] TV3 considered that it needed to address a number of issues raised by Mr Smith in his final comment. TV3 emphasised that the programme was a "report", which inherently involves reporting people’s opinions and their account of events. It wrote:

Much of what Mr Smith takes issue with is the material in the programme which "reports" on the views expressed by other people with which he disagrees. Mr Smith had an opportunity for input although he denies this.

[73] TV3 submitted that the Authority’s "primary issue for determination" was whether Mr Smith was afforded the opportunity to provide his views. It stated that it had already detailed, in its response to the Authority, its attempts to get Mr Smith’s comments.

[74] Referring to Mr Smith’s letter of 4 June 2002 from the Department of Corrections, TV3 said that it confirmed that even the Department was attempting to get Mr Smith’s comments. In TV3’s view, the letter also confirmed that an offer had been made to Mr Smith for his input, and that it corroborated TV3’s advice that he had "declined or failed to take-up" its offer for an interview.

[75] TV3 attached a newspaper report which featured in the New Zealand Herald on 25 May 2002. It submitted that this article dealt with many of the issues discussed in the programme complained about. It argued that as this newspaper article was published prior to the broadcast "the primary issues were already in the public arena before the screening of the programme". In addition, it contended that the readership of the Herald article would have exceeded the number of viewers of the item complained about.

[76] TV3 submitted that any "harm" alleged by Mr Smith to have been caused by the item, "had already occurred before the programme went to air". It said that this supported its earlier point, that Mr Smith’s problems were not its "fault", but arose because of:

1 his position of responsibility in a Unit that was dogged with controversy and allegations of 
   misconduct, and

2 his role in the Kirwee Tavern incident. Whether he "ordered", "bashed" or "tapped" the
   penis, he is identified and does not deny playing a role in this incident.

The Complainant’s Further Submission

[77] Mr Smith responded to TV3’s further submission, and reiterated the central aspects of his complaint. He disputed its interpretation of his employer’s letter and its contention that he had an opportunity to be interviewed.

[78] Referring to the Herald article cited by TV3, Mr Smith disagreed with its submission and wrote:

Television has greater impact and provides greater national coverage than the Auckland newspaper. The latter has a large circulation but it is generally read by people in the north half of the North Island. Additionally, that the article appeared in such a large newspaper is no guarantee that that particular article will be read by the purchaser.

The Authority’s Determination

[79] Mr Smith complained that the item broadcast by TV3 on 20/20 about the activities of the Christchurch Prison Emergency Response Unit (ERU), breached broadcasting standards requiring it to show balance, accuracy and fairness. In breaching those standards, Mr Smith said the programme had caused him "immense embarrassment and stress".

Balance

[80] Standard 4 requires broadcasters to maintain 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.

[81] The formation of an Emergency Response Unit in a public prison which was referred to by some as the "Goon Squad" and whose activities were not generally known to the wider public, in the Authority’s view, constituted a controversial issue of public importance. The Authority notes that the following points of view were canvassed during the programme:

an inmate critical of ERU activity;

prison reformer Kathy Dunstall of the Howard League who criticised both policy and practice;

a disguised ERU officer;

former ERU officer Nigel French giving evidence at his Employment Court case describing his depression;

other ERU officers Peter Nielson and Sandy Inkersell describing their institutional and squad activity;

Phil McCarthy, the General Manager of Public Prisons who defended the squad’s activities and accepted some responsibility for management systems ;

deceased inmate David Haimona’s partner Dolly Lenane;

squad member Alistair Thompson who gave evidence in the Employment Court about the Kirwee Tavern incident;

Maureen Love, former Corrections Department Human Resources Manager on the missing exhibits of drugs and alcohol; and

the complainant Mr Smith stating "I’ve got no comment".

[82] Overall the Authority considers a balance of perspectives was aired during the programme. The issues regarding whether the complainant was given an adequate opportunity to present his views, and whether the programme presented the contrasting evidence given by others in the Employment Court have been addressed under Standard 6 (below). On the basis that the item did adequately present a variety of views, the Authority considers that the requirements of Standard 4 were satisfied.

[83] The Authority notes that Mr Smith complained that the programme had a "very negative slant". However, the Authority notes, that aspect was not related to the inclusion or the failure to include other viewpoints during the programme, but rather to the inherently negative nature of the activities, which could not have been presented in a manner which reflected favourably upon any of the Unit members, or the Corrections Department. The broadcast related to news and current affairs reporting and detailed matters of public interest. The Authority finds that the item concerned the existence and the activities of a specialised squad of prison officers, and that the inquiry into and reporting on the matter was strongly in the public interest and of public interest. Accordingly, the Authority declines to uphold the aspect of the complaint that the broadcast breached Standard 4.

Accuracy

[84] Standard 5 requires broadcasters, in the preparation and presentation of news and current affairs programmes, to be truthful and accurate on points of fact. The complainant alleges a number of factual inaccuracies which constitute a breach of Standard 5.

[85] The first is whether the ERU was "secret". According to the Concise Oxford Dictionary, secret means "kept or meant to be kept private, unknown, or hidden from all or all but a few". While the ERU was known to insiders within the Corrections Department prison staff and inmate groups, its existence was not known of by members of the general public and an internal inquiry into its activities was not made public. The Authority finds that the use of the word is considered appropriate in the circumstances and declines to uphold this aspect of the broadcast as a breach of Standard 5.

[86] The main thrust of the complaint concerns whether the complainant "ordered" a member of the Unit to place his penis on the table as a bizarre method of testing obedience. The programme’s transcript reads:

Court:                      Is it not correct that you were in the bar of the Kirwee Hotel when
                               Doug Smith slammed a beer bottle down on your penis when it was
                               sitting on a table.

Alistair Thompson:   That is correct, yes.

Court:                      Is the reason for your compliance with such a brutal act, part and
                               parcel of the macho aggressive culture that existed in this unit?

Alistair Thompson:    No

[87] The complainant’s version is that when Mr Thompson placed his penis on the table, he had responded by tapping Mr Thompson’s penis with a bottle and telling him to "put it away". The Authority records that it prefers the eye witness version of Mr Thompson’s evidence stated in the Employment Court, rather than Mr Smith’s account of that aspect of the incident.

[88] In it’s investigation of the complaint, TV3 said that it could not conclude whether Mr Smith did give such an order because the "material on which the investigative team based the statement" was not "sufficiently unequivocal to enable us to determine accuracy beyond doubt". TV3 said the reporters should have "sought more corroboration of the statement" before using it in the programme. However, the broadcaster went on to conclude that, even if the statement was inaccurate, Standard 5 had not been breached because the statement was not material in the context.

[89] The Authority disagrees with this line of reasoning. The standard is an absolute one and requires such statements to be accurate, impartial and objective. Materiality and significance in context, do not arise in the standard as written. The Authority also notes that the implication that the complainant ordered the incident was referred to five times in the programme – just before a commercial break and four times in the second half of the programme:

After the break, the men in charge of the Goon Squad, and their peculiar forms of obedience.

And there seemed to be a weird side to this unquestioning obedience.

ERU leader Doug Smith testing Alistair Thompson’s ability to take orders.

So why did he do it, and for that matter why did his commander Doug Smith ask him to do it?

Doug Smith the man who ordered the penis on the bar, is working at Kia Marama, the sex offenders unit.

[90] The Authority therefore agrees with TV3 that the reporters needed more corroboration before the statement that the complainant "ordered" Mr Thompson to place his penis on the table was broadcast. Accordingly, it concludes that this aspect of the broadcast is inaccurate and in breach of Standard 5. The Authority does not regard the incident as one to which Standard 4 applies. It considers the Standard 6 aspect when reviewing the item’s overall fairness to the complainant.

[91] The third factual inaccuracy raised by the complainant concerns the number of breaches of his employment code of conduct. The relevant portion of the programme’s transcript reads:

Reporter:         You were found guilty of 21 breaches of conduct Mr Smith. How does that
                       make you feel?
Do you think you should lose your job?

Doug Smith:    I’ve got no comment.

Reporter:         Are you surprised you’re still in your job?

[92] In his final comment the complainant stated that 16 of the alleged breaches were found to have "no substance and discontinued with". TV3 maintained that Mr Smith was found guilty of 21 breaches of the code. In correspondence with the Authority the broadcaster stated:

There is no dispute that the inquiry found 21 breaches of the code of conduct. The inquiry report was then reviewed by Prison Management with the result that Mr Smith was disciplined for some breaches and not for others.

[93] Mr Smith subsequently sent the Authority a copy of a letter he received from the Department of Corrections. The letter advised that the Department’s investigation team recommended that Mr Smith had committed 21 breaches. After the complainant’s submissions he was found guilty of five breaches of the code of conduct.

[94] The Authority concludes that the broadcast was inaccurate in the sense that only five of the alleged breaches of conduct – misconduct in 4 cases and serious misconduct in another case – were upheld. It was therefore inaccurate of the reporter to say "you were found guilty of 21 breaches of conduct Mr Smith".

[95] The fourth aspect alleged by Mr Smith concerned Ms Dunstall’s statements regarding inmate abuse by the ERU. The relevant statement is recorded at paragraph [29]. The complainant stated that the allegations were untrue and unsubstantiated, and gave a "false picture". TV3 stated that it had simply reported Ms Dunstall’s comments and concerns. The Authority concludes that Ms Dunstall’s statements were her observations and informed expression of opinion, not authoritative statements of fact to which Standard 5 applies. Accordingly, the Authority declines to uphold this aspect of the broadcast as a breach of the accuracy standard.

[96] The Authority notes that Mr Smith alleged a number of other inaccuracies in the programme which were not appropriate for consideration under Standard 5. However, the Authority notes that those aspects relating to the complainant’s opportunity for an interview, and the rebuttal evidence given in the Employment Court may still threaten other broadcasting standards, and it deals with those aspects in its consideration of Standard 6.

Fairness

[97] Standard 6 requires the broadcaster to deal justly and fairly with Mr Smith as a person referred to in the programme.

[98] Mr Smith argued, a central aspect of his complaint, that he was not permitted by his employer to give an interview and that opposing evidence given in Court to the allegations raised was not aired on the programme. TV3 responded that the programme had achieved balance and fairness by including an interview with the General Manager of Public Prisons, Mr McCarthy, who was able to comment on the allegations made in the programme, and that the interview had been given "prominence" in the programme. It argued that it had attempted to interview Mr Smith to present his side of events, but that he had refused, despite permission from the Department to be interviewed.

[99] The Authority does not accept TV3’s contention regarding the status of Mr McCarthy’s interview. It considers it was not reasonable to advance that the prominence of Mr McCarthy’s interview was sufficient or provided the requisite fairness aspect to the programme on behalf of Mr Smith. Mr McCarthy’s interview on the programme could not in the Authority’s opinion be considered as a substitute for Mr Smith’s views on the allegations raised, or the contrasting evidence given in the Employment Court by other staff.

[100] There is a dispute between the parties as to the approaches made to Mr Smith for an interview. TV3 said that Mr Smith was invited to comment on all of the allegations prior to the broadcast of the programme, that his employer had permitted the interview, but that Mr Smith refused. TV3 advised that it made the following efforts in order to interview Mr Smith:

20/20 sought to film Mr Smith’s evidence in Court along with everyone else’s but he asked the Judge to refuse permission as is his prerogative. Of all the ERU members only the leaders, he and Mr Tony Bird refused to be filmed;

Mr Smith was approached in person by the item’s producer during the trial and declined an offer to be interviewed;

Mr Smith was approached outside the Court by a TV3 news reporter who politely asked him some questions. He said he was not allowed to talk;

20/20 approached the Corrections Minister, Matt Robson and the General Manager Phil McCarthy to ask them to make an exception and lift their ban on employees talking so we could speak with Mr Bird, Mr Smith and others;

at first they refused, then they changed their minds after persistent phone calls from 20/20 and a week later, just as 20/20 was finishing filming, granted a departmental dispensation to allow those involved to be interviewed;

as TV3 did not have any contact details for Messrs Bird and Smith the Corrections Department undertook to convey that dispensation to Messrs Smith, Thompson and Bird. Mr Monk, their boss, agreed to ring them as soon as possible and tell them that management had given them approval to talk. We asked him to do this as soon as possible because we were running short on time;

20/20 returned to Christchurch on Saturday June 1 and took up the offer of a tour round the jail by manager Paul Monk. He did not wish to be interviewed;

on Monday June 3 reporter Phil Vine interviewed the General Manager Phil McCarthy putting to him allegations about Mr Smith; and

before the interview he asked whether we’d talked to Mr Smith or Mr Bird and seemed surprised they’d refused. One of his staff made some calls and confirmed neither wanted to talk.

[101] Mr Smith advised that he was approached on two occasions at the Employment Court, and that he advised TV3 that his employer’s media policy prevented him from giving an interview, but nonetheless he was filmed refusing to answer questions. Mr Smith was adamant that he was never offered an invitation by his employer to be interviewed by TV3. Mr Smith enclosed a copy of a letter from his employer dated 4 June 2002, the relevant excerpts relating to this aspect read as follows:

On Friday 31 May 2002 we advised through your representative Yvonne Geekie, that Mr McCarthy, General Manager, Public Prisons was to be interviewed by 20/20 on Tuesday 4 June 2002. An offer was made for you to succinctly put any issues that you would like to be considered as input to that interview to arrive no later than first thing Tuesday 4 June 2002.

A request was received for you to be given permission to speak to the media and as we were unable to contact Mr McCarthy it was suggested that you forward to Mr Monk a summary of what you would say to the media if permission was granted.

[102] The Authority considers that Mr Smith was not given a reasonable opportunity to present his views on the allegations raised in the programme. It is clear, based on the documents before the Authority, that Mr Smith’s employment conditions constrained him from speaking to TV3. He was not permitted by his employer to give an interview, and this was apparent to TV3. His employer offered him the opportunity to provide his input for Mr McCarthy’s interview with 20/20 but this falls short of being permitted by his employer to be interviewed as contended by TV3. The Authority also finds that the inclusion of footage of Mr Smith outside the Employment Court inviting Mr Smith to comment knowing that he could not answer, was unfair. The absence of rebuttal footage from the Employment Court hearing is noted here. The Authority considers that these aspects of the programme were not just and fair to Mr Smith as required by the standard. Accordingly, the Authority concludes that Standard 6 was breached.

[103] There were a number of other aspects of the programme raised by the complainant. In its determination, the Authority has focussed on those aspects which raise core broadcasting standards issues. In the Authority’s opinion the other matters raised by Mr Smith did not breach the standards per se. However, to the extent that those relevant aspects did raise issues of fairness, though not referred to explicitly, the Authority has incorporated them within its consideration of Standard 6.

[104] Mr Smith also complained about two other aspects which did not feature as part of this item, but were news items broadcast on TV3 in relation to the coverage of the Employment Court case. TV3 advised that these matters were outside the 20 day period when they received Mr Smith’s formal complaint. On this basis, the Authority has no discretion but to accept TV3’s decision and, accordingly, declines to determine these matters.

[105] Finally, the Authority notes that at the time of the programme the Coroner’s report in relation to inmate David Haimona was not available. The Coroner has since released his report and the Authority has obtained a copy. It notes the following point from that report in relation to the ERU:

156 As the ERU has been disbanded, with no likelihood of returning (according to the evidence) there are no recommendations concerning that Unit. There seems to be no place for a high-profile security unit, operating in paramilitary fashion, in New Zealand prisons on a day-to-day basis.

Bill of Rights

[106] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision No. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.

[107] For the reasons explained in this decision, the Authority considers that the exercise of its powers on this occasion in relation to those aspects of the complaint which it has upheld is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of this complaint, including the nature of the complaint.

[108] In relation to those aspects of the complaint which the Authority has not upheld, the Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

 

For the reasons given above, the Authority upholds the complaint that aspects of the item broadcast by TV3 Network Services Ltd on 20/20 on 9 June 2002 were inaccurate and unfair and in breach of Standard 5 and Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

The Authority declines to uphold other aspects of the accuracy complaint and the balance aspect of the complaint.

[109] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[110] In his submission, Mr Smith maintained that the programme had damaged his reputation. He asked that TV3 be ordered to pay him compensation of $5,000 for the distress and the damage that the programme had inflicted on him, and also the costs of the legal advice he had obtained in the preparation of the complaint, amounting to $2,500. Mr Smith also requested that TV3 be ordered to broadcast an acknowledgment that the programme had breached broadcasting standards, and apologise to him for distress and humiliation that the programme had caused him.

[111] In its submission, TV3 proposed that no orders be imposed. It made this submission on the basis that the programme was balanced, and of the numerous aspects alleged by Mr Smith, only two aspects of the item were upheld as inaccurate – which were "relatively innocuous". It further contended that the unfairness to Mr Smith, only related to his inability to respond to these two inaccurate aspects of the programme.

[112] Having taken the submissions into account, the Authority concludes that an order is appropriate. It considers that while the item investigated and reported on a matter both in the public interest and of the public interest, the broadcaster failed in its responsibility to ensure, first, Mr Smith was dealt with fairly, and second, the accuracy of the entire broadcast.

[113] The Authority considers that the broadcast of a statement is the appropriate action. The statement should acknowledge that aspects of the broadcast were inaccurate and unfair to Mr Smith. The Authority does not consider that a costs order is warranted.

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders TV3 Network Services Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld as a breach of Standard 5 and Standard 6 of the Free-to-Air Television Code of Broadcasting Practice. The statement shall be approved by the Authority and broadcast at a date and time to be approved by the Authority.

The Authority draws the broadcaster’s attention to the requirements in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

 

Peter Cartwright
Chair
13 February 2003

Appendix

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

  1. Doug Smith’s Formal Complaint to TV3 Network Services Ltd – 10 July 2002
  2. TV3’s Response to the Complainant – 31 July 2002
  3. Mr Smith’s Referral to the Broadcasting Standards Authority – 13 August 2002
  4. TV3’s Letters to the Authority – 3 and 5 September 2002
  5. Mr Smith’s Final Comment –19 September 2002 (plus attachments)
  6. TV3’s Response to the Final Comment – 18 October 2002 (plus attachment)
  7. Mr Smith’s Further Submission in Response to TV3’s Letter – 23 October 2002
  8. TV3’s Response to the Authority’s Request for Information about the Code of Conduct Breaches
    – 25 October 2002
  9. Mr Smith’s Response to the Authority about the Code of Conduct Breaches – 8 November 2002 (plus attachments)
  10. Mr Smith’s Submission on Order – 27 January 2003
  11. TV3’s Submission on Order – 27 January 2003