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Giles and Television New Zealand Ltd - 2002-073

Dated

13th June 2002

Number

2002-073

Channel/Station

TV One

Broadcaster

Television New Zealand Ltd


Complaint
60 Minutes "Double Lives" – documentary about alleged "double lives" of Fiji Red Cross Director John Scott and New Zealand partner Gregory Scrivener, murdered in Suva in July 2001 – unsubstantiated allegations about drug abuse and sex abuse – breach of standards relating to the maintenance of law and order; the privacy of the individual; balance, fairness and accuracy; the protection of children; and discrimination

Findings
Section 4(1)(c) – privacy – individuals deceased – family consented – no uphold

Standards G1 and G21 – no evidence of inaccuracies – no uphold

G4 – deceased individuals – not applicable – no evidence family dealt with unfairly – no uphold

G5 – sub judice rule does not apply to overseas trial – no risk of prejudice because of delay anyway – no disrespect to principles of law – no uphold

G6 – majority – balance achieved during period of current interest as story slow in breaking – no uphold – minority – insufficient summary of alternative points of view – uphold

G11(iv) – no evidence – no uphold

G12 – not required to consider children individually – satisfactory for children generally – no uphold

G13 – high threshold not threatened – no uphold

G14 – dealt with under G1, G4 and G6 – no uphold

G15 – complainant’s claim about sources unsubstantiated – no uphold

G17 – subsumed under G4

This headnote does not form part of the decision.


 Summary

[1] The alleged "double lives" of Fiji Red Cross Director John Scott and his New Zealand partner Gregory Scrivener, who were murdered in their Suva home in July 2001, formed the subject of a programme entitled "Double Lives", broadcast on 60 Minutes on TV One on 18 November 2001 at 7.00pm. The programme included interviews with young men who said they had been drugged by the men and forced to have sex.

[2] On behalf of the Scrivener family, Janice Giles, a sister of Mr Scrivener, complained to Television New Zealand Ltd, the broadcaster, that the programme breached broadcasting standards relating to the maintenance of law and order; the privacy of the individual; balance, fairness and accuracy; the protection of children; and discrimination.

[3] TVNZ declined to uphold any aspect of the complaint. It said the programme was the result of "solid research" by the reporter, and the allegations had been corroborated by a number of sources.

[4] Dissatisfied with TVNZ’s response, Ms Giles referred the complaint to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.

For the reasons given, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have viewed a tape of the programme complained about and have read a transcript of the programme and the correspondence listed in the Appendix. The members have also watched the 60 Minutes item entitled "Saints or Sinners", broadcast in July 2001. The Authority determines this complaint without a formal hearing.

The Programme

[6] The alleged "double lives" of Fiji Red Cross Director John Scott and his New Zealand partner Gregory Scrivener, who were murdered in their Suva home in July 2001, formed the subject of a programme entitled "Double Lives", broadcast on 60 Minutes on TV One on 18 November 2001 at 7.00pm.

[7] The reporter introduced the programme as follows:

Back in July it was headline news – the brutal murders of Fiji Red Cross Director John Scott and his New Zealand partner Greg Scrivener, butchered in their exclusive Suva home. Back then there was much speculation. Was it a political murder? Was it a crime of passion? Or even a hate killing? Well, tonight we present fresh evidence in the case, clear evidence of the double life Scott and Scrivener lived and how that lifestyle may have caused their deaths. 60 Minutes has sighted a letter between the men which demonstrates their relationship was far from monogamous and tonight you’ll hear from young men who say they were preyed upon by the pair, used and abused, given money, even drugged …

[8] The programme reported that the Police investigation into the murders had uncovered "correspondence, photos and evidence suggesting predatory sex". The reporter interviewed three young men who told of being "plied with alcohol, marijuana and money by the pair and then enticed to their bedroom".

[9] A 19-year-old who had applied for a gardener’s job at the couple’s home said he had been given orange juice spiked with a "white substance", before waking up hours later in the couple’s bed. Another young man who had been interviewed for a job at the Red Cross told the reporter that Mr Scott had invited him home, given him alcohol and marijuana and injected him with cocaine, before having sex with him. It was reported that Police had confirmed, after tests in Australia, that cocaine mixed with heroin had been discovered in the house after the murders.

[10] Apete Kaisau, the young man who confessed to the murders, was reported to have first been enticed to the house as a schoolboy. He was reported to have said during his confession that Mr Scott and Mr Scrivener had sexually abused him over a two-year period, and offered him money to become involved in an internet pornography operation. Mr Kaisau had been remanded for a psychiatric report, which declared he was fit to plead, the programme reported.

[11] The programme included footage from the 60 Minutes documentary "Saints or Sinners", broadcast four months earlier, in which the Scrivener family denied the drugs and sex allegations.

[12] Mr Kaisau’s lawyer, Barry Hart, was also interviewed. Mr Hart told the reporter there was no foundation for the murders being politically motivated. The following exchange then took place between the reporter and Mr Hart:

Reporter:    Are we talking pornography? Paedophilia? Sex crimes? The internet?

Mr Hart:     Well, I can tell you that independent investigations are confirmatory of
                  some of the matters that you’ve raised and all of these matters will be
                  fully investigated as part of our defence. It wouldn’t be appropriate for
                  me to comment specifically, but shall we say you’re on track.

[13] The programme reported that Mr Hart and Fiji Police were investigating claims of paedophilia and pornography, and that the young men who talked to 60 Minutes had also made those claims. The man who said he drank the spiked orange juice said he remembered a camera, and the reporter asked him, "Are you scared that maybe you’re on video somewhere? Maybe they have pictures of you?" The Fiji Police Commissioner was then quoted saying that nothing that could be described as a camera had been seized from the house.

[14] The programme also reported that three years before the murders Mr Scott was investigated following a complaint by a young man who alleged Mr Scott was making pornographic films. The Police file had now gone missing, the programme reported. It concluded with speculation that boys as young as 12 may have been victims of Mr Scott and Mr Scrivener.

The Complaint – The Standards

[15] On behalf of the Scrivener family, Janice Giles, a sister of Mr Scrivener, complained to Television New Zealand Ltd, the broadcaster, that the programme breached broadcasting standards relating to the maintenance of law and order; the privacy of the individual; balance, fairness and accuracy; the protection of children; and discrimination.

[16] After being informed by TVNZ that her complaint would be considered under the new Free-to-Air Television Code of Broadcasting Practice, Ms Giles asked that the complaint be assessed under the following standards and guidelines in the new Code:

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.

Guidelines

2a  Broadcasters must respect the principles of law which sustain our society.

2b  Factual programmes should not glamorise criminal activity or condone the actions of criminals.

Standard 3: Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Guideline

3a  Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.

Standard 4: Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guideline

4a  Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

Standard 5: Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5a  Significant errors of fact should be corrected at the earliest opportunity.

5b  Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

5c  Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.

5d  Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

5e  Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

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.

Guidelines

6a  Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

6b  Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

6c  Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

6e  Broadcasters should take particular care when dealing with distressing situations, and with grief and bereavement. Discretion and sensitivity are expected.

6f  Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

6g Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

i) factual, or

ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or

iii) in the legitimate context of a dramatic, humorous or satirical work.

Standard 8: Programme Information

Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.

Guidelines

8b  Broadcasters should not use the process known as "subliminal perception" or any other technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness.

[17] TVNZ also assessed the complaint under Standard 9, which reads:

Standard 9: Children’s Interests

During children’s normally accepted viewing times broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

The Complaint

[18] Ms Giles began her complaint by stating:

John Scott was the well-known Director General of the Fiji Red Cross. Greg Scrivener and John Scott were homosexuals in a long-term relationship. Their murders were brutal and shocking. Right from the very first news reports allegations were made about them on the basis of their sexual orientation. Wild and lurid media speculation was actively encouraged by a homophobic Commissioner of Police. The family has not been helped by reported unsubstantiated allegations which continue to persist.

[19] Ms Giles complained that allegations made on the programme violated the principle of sub judice. She said it seemed that TVNZ was "promoting the interests of the defence in order to subvert the prosecution case", and she quoted from a newspaper article in support of that view.

[20] Ms Giles said Isikia Savua, Fiji’s Police Commissioner, had "consistently promoted the idea that Greg and John led a double life". She continued:

It would appear that TVNZ has been acting in collusion with [defence lawyer] Barry Hart in support of this view.

There seems to be a clear attempt to pervert the course of justice by creating in the minds of potential jurors the impression that the murder victims deserved to be killed.

In support of that observation, Ms Giles quoted the father of the man charged with the murders, who had told the reporter that Mr Scott and Mr Scrivener "deserved what they got".

[21] Ms Giles said 60 Minutes had attempted to influence the public viewpoint, and she quoted the exchange between the reporter and Mr Hart regarding "paedophilia, pornography, sex crimes, the internet" in support of that view.

[22] Ms Giles complained that no attempt had been made to contact the Scrivener family to address matters raised in the programme, and that the programme infringed upon the rights of the family that there be a fair trial.

[23] Ms Giles complained that the programme breached the victims’ privacy. Allegations about their private lives had not been subjected to critical questioning, and statements made about them went unchallenged, she said.

[24] Ms Giles complained that the programme breached 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. Only one viewpoint had been pursued in any depth, she said, and that was that "John Scott and Greg Scrivener were bad people who deserved to die."

[25] The motivation and credibility of the three men interviewed had not been questioned, Ms Giles said. She quoted a number of allegations made by the men, which she said did not receive either critical questioning or analysis. For example, Ms Giles pointed to the following exchange between the reporter and one of the men:

Man:           I wake up about 2 o’clock. I see John there and er…

Reporter:     Greg?

Man:           Yeah, Greg.

Reporter:     On the other side – so you’re lying in the…

Man:           And my clothes is here.

Reporter:     Your clothes are off?

Man:           Yeah.

Reporter:     Pulled down?

Man:           Yeah.

Reporter:     Do you know whether they had had sex with you or not?

Man:           I don’t know.

Reporter:     You don’t know?

Man:           Yeah.

Ms Giles said the reporter did not question this allegation of drug rape, and she said, "Surely a man would know whether he had been raped or not".

[26] Ms Giles said there was no evidence to support allegations that Mr Scott had been the subject of an earlier investigation, and she questioned whether the missing police file ever existed.

[27] She said certain allegations made in the programme had been retracted elsewhere. For example, pornography and pornographic videos allegedly found in the house had turned out to be "harmless family holiday images", and this had been reported in Fijian newspapers.

[28] In relation to the statement that Police had confirmed that cocaine mixed with heroin had been found in the house, Ms Giles said only "preliminary tests" had indicated that to be the case.

[29] Ms Giles proposed an "alternative viewpoint", that the accused was mentally ill. She said by "pointedly stat[ing]" that the accused had been declared fit to plead, the programme implied he was not psychotic, and she questioned the accuracy of that implication.

[30] Ms Giles complained that the programme breached the obligation to consider the interests of child viewers, because Mr Scrivener’s nephews had seen the programme and it had been talked about at their school. The programme also perpetuated myths about homosexuals and paedophilia, she said.

[31] The complainant concluded:

This programme was tabloid parody. Bias was obvious and was used to present the message: "These were bad people who deserved to be murdered". The programme appeared to be working for the defence in a murder case yet to come to trial. The private lives of the murder victims have been dragged into every kind of foul allegation possible, particularly in the context of their being homosexuals.

[32] Ms Giles said the programme was deeply offensive to her family, and she requested a public apology from the broadcaster.

The Broadcaster’s Response

Standard 2: Law and Order

[33] In response to the aspect of the complaint that the programme violated the principle of sub-judice, TVNZ said it was its Complaints Committee’s understanding that the principle did not cross international boundaries. TVNZ said:

… the media in one country are able to report matters that may come before the courts in another – even though that material may not be published in the country where the trial is taking place.

[34] TVNZ quoted a passage from "A Journalist’s Guide to the Law" by Professor John Burrows, as follows:

Contempt of court is not lightly found. The question in each case is whether there is a real risk that the trial is likely to be prejudiced. Relevant considerations are the length of time between the publication and the trial, the extent of publicity given to the publication and, of course, the nature of the statements made.

[35] TVNZ said its Complaints Committee understood the trial in Fiji was "still many months, and possibly more than a year, away." It continued:

In reference to the extent of publication it was noted that this broadcast was made in New Zealand, not in Fiji. As far as the statements made were concerned, as will be revealed below, it was the committee’s understanding the references to the accused were based on a mixture of publicly-available information and solid research by the reporter.

[36] TVNZ said the newspaper article quoted in the complainant’s letter "fl[ew] in the face of the confession by Apete Kaisau, the police investigation in Fiji, and the findings of TVNZ’s reporter investigating the story".

[37] In relation to the complainant’s contention that Fiji’s Police Commissioner had "consistently promoted the idea of that Greg and John led a double life," TVNZ said:

The fact is that the police in Fiji have ended their investigation into the accusations of sex crimes and paedophilia because dead men cannot be charged with crimes. It is not in the interests of the prosecution to investigate this matter further; it may however be in the interests of the defence and that is why Mr Hart is continuing his own enquiries.

[38] TVNZ denied Ms Giles’ assertion that no attempt had been made to contact the family to address matters raised in the programme. It said the reporter had had a "lengthy conversation" with Ms Giles’ sister in Tauranga before the programme was broadcast, during which the content of the programme was detailed, and she declined the opportunity for the family to respond.

[39] TVNZ rejected the "very serious allegation" that 60 Minutes had acted in collusion with defence counsel Barry Hart, stating that Mr Hart had not entered the case until long after 60 Minutes started its investigation. TVNZ said he was one of many sources of information, and the programme’s main interest in him was that, apart from the Fiji prosecution, he was the only person who had interviewed Apete Kaisau at length.

[40] In rejecting the aspect of the complaint that the programme glamorised criminal activity or condoned the actions of criminals, TVNZ said:

Whose criminal activity was condoned?

Standard 3: Privacy

[41] TVNZ declined to uphold the aspect of the complaint that the programme breached the murder victims’ privacy. It said the information provided by the programme was a matter of public interest. Furthermore, as Mr Scrivener’s family had consented to appear on an earlier programme the family could not now claim a breach of privacy, it said.

Standard 4: Balance

[42] TVNZ declined to uphold a breach of Standard 4, stating that:

… between them, "Saints or Sinners" (28 July) and "Double Lives" (18 November) represented both sides of this murder investigation. "Double Lives" was produced as a consequence of information emerging after the earlier investigation and, as required by the standard, provided balance "within the period of current interest".

[43] TVNZ said what was broadcast was "necessarily only a small part of the material gathered during the investigation", but it was an accurate representation. For example, the young men who appeared in the item were three of more than ten who were spoken to by the reporter, TVNZ said. It said many others including members of the Fiji gay community, close friends of the deceased, and Europeans living in Fiji had provided corroboration.

Standard 5: Accuracy

[44] TVNZ said the complainant’s contention that the reporter had not checked the credibility and motivation of the interviewees did not seem fair. The reporter had apparently checked the background of each person before the interview was conducted, it said.

[45] While it acknowledged that no pornographic tapes had been found in the house, TVNZ said that did not prove that none were made. TVNZ said the Commissioner of Police had substantiated the drug allegations, which was a matter for the family to take up with the Commissioner.

[46] TVNZ said while Ms Giles had made a number of allegations in her complaint, she had provided no evidence to support her view that the programme was either untruthful or inaccurate. In relation to her accusation that the programme was "blatantly biased reporting", TVNZ said 60 Minutes had produced two programmes and the views of the Scrivener family and the views of the accused had been balanced over the two stories.

[47] It declined to uphold a breach of Standard 5.

Standard 6: Fairness

[48] TVNZ said the complainant had provided no evidence to back up her claim that the facts "were all distortion". The material broadcast had been thoroughly checked and verified and was backed up by other material not used in the programme, the broadcaster said. The men who were interviewed knew they would be identifiable, and no information had been acquired by misrepresentation or deception. In reference to the requirement in Guideline 6e that broadcasters take particular care when dealing with distressing situations, and with grief and bereavement, TVNZ said the programme recognised that it would have been painful to the Scrivener family, "hence the call to your sister in Tauranga two days before the broadcast." It said:

However there are occasions when the wider public interest, and the freedoms enshrined in the Bill of Rights Act override the sensitivities of individuals. It seemed clear to the committee that what you heard on 60 Minutes was not new to you and so did not come out of the blue, so to speak.

[49] TVNZ declined to uphold the aspect of the complaint that Guideline 6g of Standard 6 had been breached, stating that the programme neither encouraged the denigration of homosexuals as a group, not did it encourage discrimination against the murdered men.

Standard 8: Programme Information

[50] TVNZ declined to uphold a breach of Guideline 8b of Standard 8, stating that the programme contained no subliminal images, and that there had been no attempt to influence public opinion and potential jurors, "subliminally or otherwise".

Standard 9: Children’s Interests

[51] Finally, in declining to uphold the aspect of the complaint that the programme failed to consider the interests of child viewers, TVNZ said:

While the committee was sorry that the programme dismayed the nephews of Mr Scrivener, it noted that they were not referred to or involved in any way. With respect, an investigation of a murder cannot be sanitised or altered because young family members of victims may hear unpalatable details. Your family was advised through your sister that the programme was to be broadcast, and it seems to the committee that in providing that advice, 60 Minutes treated the children fairly and placed the adults in a position where they could have prevented the children viewing it had they wanted to.

The Complainant’s Referral to the Authority

[52] In her referral to the Authority, Ms Giles said while it may not have been illegal to screen the programme in New Zealand, it was immoral and unethical to do so. 60 Minutes had been able to "knowingly and cynically present rumour and innuendo and dubious allegations with legal impunity," she said. She said the reporter’s "solid research" seemed to consist of "finding malcontents and reporting malicious gossip, rumour and speculation".

[53] The complainant said Apete Kaisau’s confession three days before his arrest had initially been rejected because it was inconsistent with evidence. The confession only became consistent after Police took him to the scene of the crime, she said. Ms Giles said the Police investigation had found what it had "predetermined it was looking for – a homosexual killing". There appeared to have been no investigation of alternative motives, or serious attempts to identify a man who was alleged to have threatened Mr Scott about giving evidence in the trial of George Speight.

[54] The complainant continued:

We know John Scott had received many coup-related death threats when Apete Kaisau was not even living in Fiji because he told us about them. We know that people are afraid to speak about such things and that such threats continue, for example to the proposed trial judge of coup plotters (as reported in Fiji’s Daily Post 29.01.02).

[55] Ms Giles disputed TVNZ’s contention that Fiji Police had ended their investigation into the accusations of sex crimes and paedophilia because dead men could not be charged with crimes. She said the alleged investigation had been dropped long before the murders because there was no evidence, not because they were dead.

[56] Ms Giles acknowledged that the reporter had contacted her sister in Tauranga to tell her the programme was going to air. However, she said her sister was not asked if she wished to comment or respond. Ms Giles provided a copy of her own telephone account to demonstrate that she had twice rung the reporter and left messages. She said he did not return her calls or leave messages, and that his actions did not indicate willingness to allow the family to respond.

[57] Ms Giles repeated her view that the programme raised suspicion of collusion between Mr Hart and 60 Minutes.

[58] In relation to TVNZ’s question as to whose criminal activity the programme condoned, Ms Giles said the alleged murderer was "made out to be a hero, ‘a brave boy’, doing what is ‘morally right in the eyes of God’ (to quote his father on the programme), who killed his victims because they deserved it".

[59] Ms Giles rejected TVNZ’s view that the programme was a "genuine attempt to find answers". She said such "answers" appeared to have been uncritically accepted and not subjected to analysis, and the programme was "sensationalised voyeurism" and "nothing less than scandal-mongering on the basis of the victims being homosexual".

[60] Ms Giles rejected TVNZ’s argument that "Double Lives" was necessary to provide balance to the earlier "Saint or Sinners" programme. She said the four months between the two programmes seemed a long time to fall "within the current period of interest".

[61] Regarding the credibility and motivation of the interviewees, Ms Giles reiterated her family’s view that the "idea of the [murder] victims drugging and injecting someone with cocaine" was incredible. She suggested various other motives the interviewees may have had.

[62] Challenging as "spurious" TVNZ’s assertion that because no pornographic tapes had been found did not mean there were none, Ms Giles repeated that Fiji Police had publicly acknowledged that the tapes originally claimed to be pornography were family movies.

[63] Ms Giles said the Police Commissioner was implicated in the May 2000 coup. She said his brother, Major Joseva Savua, who was currently being held on Nukulau Island with George Speight, had led the rebel troops into parliament grounds and was yet to stand trial for treason, for which the penalty was death. Ms Giles continued:

John Scott went into that compound every day for over 50 days and saw what happened there – he also understood Fijian and what he didn’t see he overheard from rebels who did not know he understood their language. If Apete Kaisau killed John Scott and Greg Scrivener, it may be extremely convenient for Commissioner Savua’s brother and many others who have much to hide in their regard. Anything John Scott may have written down or said to others regarding the hostage situation can now be discredited with impunity.

[64] Ms Giles said her personal opinion of the Police Commissioner as a homophobe was supported by many people, and she referred the Authority to a website in support of this view.

[65] In relation to Apete Kaisau’s mental state, Ms Giles said he had been held in a psychiatric institution for more than six months, and the fact that he was "fit to plead" did not mean that he did not have a pre-existing psychiatric disorder.

[66] Ms Giles noted that the credibility of Fiji Police was not high, and that three members of the Police had been charged with looting the murder victims’ house.

[67] In relation to TVNZ’s assertion that there were no errors of fact in the programme, Ms Giles said the Scrivener family "most strongly contends that the programme was misleading regarding the lifestyle of the victims who we knew well". She said people who knew the victims, and who rejected the 60 Minutes allegations, had contacted the family.

[68] Ms Giles rejected TVNZ’s argument that the two programmes provided balance. In relation to fairness, Ms Giles said interviewees had been prompted and asked leading questions. She said:

John Scott’s very great commitment to his work with the Red Cross and the well being of the people of Fiji was only gratuitously presented in order to be knocked down as a public cover to an allegedly depraved private life. As indicated earlier, we contest that the material broadcast was thoroughly checked and verified.

[69] In relation to the aspect of the complaint that Guideline 6c of Standard 6 had been breached, Ms Giles repeated an earlier allegation that TVNZ had not gained permission to film on the terrace and grounds of the Scott/Scrivener house, and had therefore obtained the footage through misrepresentation or deception.

[70] As to whether the programme encompassed the principles of "care and sensitivity" as required by Guideline 6e of Standard 6, Ms Giles said the reporter’s call to her sister was like "warning someone that they will be hit before hitting them".

[71] In relation to the aspect of the complaint that the broadcast breached Guideline 6g of Standard 6, Ms Giles said:

Every myth I can think of about homosexuals was perpetuated in this programme. Suggestions that they were paedophiles, allegations of pornography rings, indiscriminate sex with multiple partners, drug use and drug pushing, exploitation of young people etc are all popular lifestyle myths applied to male homosexuals.

[72] Under Standard 8, Ms Giles said she believed subliminal images had been used. She referred to footage of Mr Scott entering the compound during the coup, carrying what after several viewings she said she realised was intended to look like a movie camera.

[73] Finally, Ms Giles reiterated her view that the programme breached the requirement that broadcasters consider the interests of children.

The Broadcaster’s Response to the Authority

[74] TVNZ responded to the Authority that the complainant’s referral:

poses the same problem as did the original complaint - that is, that the letter from Ms Giles is short on evidence to back up the charges she makes, relying often on opinion and assertion rather than sources.

[75] TVNZ stressed that the two programmes provided a "fair and balanced account of this tragic and controversial event." It said 60 Minutes would not have fulfilled its ethical responsibilities if it had suppressed those parts of the story which caused distress to the Scrivener family.

[76] In reference to the reporter’s telephone call to Ms Giles’ sister in Tauranga, TVNZ said the "whole point of the call" was to inform the family of the broadcast, and to invite comment. It said the reporter received a clear statement that the family wished to make no comment.

[77] TVNZ said it was correct that Ms Giles later left messages for the reporter. It said:

The reporter says that the last message from Ms Giles was a lengthy one which went over most of the issues which had already been canvassed at length. Significantly there was no request for the reporter to return the calls, no request for an interview, and no hint that there had been any change in the family’s position on declining a response to the story.

[78] TVNZ said it was "perplexed" by an apparent view that the family had only spoken to 60 Minutes on the basis that it would tell what the family believed was the "right" story. Once the new information came to light TVNZ had an obligation to present it to the viewing public, it said.

[79] Concerning the Commissioner of Police, TVNZ noted that he was not the only policeman the reporter talked to. The reporter’s contacts included several senior officers working on the case, and the information they provided in confidence corroborated what the Commissioner was saying, it said.

[80] TVNZ denied that 60 Minutes had an agenda or that interviewees were asked leading questions. It said the interviews used were conducted after lengthy pre-interviews with the various parties, undertaken to ascertain the credibility of the subjects. What was seen on the programme was a very small part of the actual interviews and all the information that was volunteered, it said.

[81] Permission to film the grounds and exterior of the house had been given by Mr Scott’s son, TVNZ said, and the programme complied with a condition not to film inside the house.

The Complainant’s Final Comment

[82] In her final comment, Ms Giles denied that the message she left for the reporter prior to the broadcast was "lengthy" as claimed by TVNZ. Her Telecom account supported her contention that the entire call was less than one-minute long, she said.

[83] In relation to TVNZ’s comment that the family had only spoke to 60 Minutes on the basis that it tell the "right" story, Ms Giles said 60 Minutes had "obviously already decided for itself what was the ‘right’ story."

[84] Ms Giles said her family found TVNZ’s comment that it had an obligation to present new information "repugnant". She said:

It seems to have been 60 Minutes’ intention right from the beginning to create a homophobic moral tale derived from gossip and other dubious sources.

[85] Ms Giles enclosed several articles supporting the family’s views.

[86] With regard to what she said was a visual suggestion that Mr Scott had access to a movie camera through the Red Cross, Ms Giles said the footage shown was of Mr Scott on his way into the compound, and he would not have gained access with a movie camera. Furthermore, the technology required to operate an internet pornography ring was not available in the household, she said.

The Authority’s Determination

[87] First, the Authority notes that TVNZ advised Ms Giles that her complaint would be assessed under the revised Code of Broadcasting Practice for Free-to-Air Television. This Code was approved by the Authority on 13 August 2001, to be effective from 1 January 2002. TVNZ has interpreted this to mean that complaints assessed after 1 January are to be assessed under the revised Code. It is the Authority’s understanding, shared with other free-to-air television broadcasters, that the revised Code applies to programmes screened after 1 January.

[88] The Authority is firmly of the opinion that this complaint should be assessed under the provisions of the former Code. Accordingly, taking the issues raised by the complainant into account, the Authority assesses the complaints under s.4(1)(c) of the Broadcasting Act and standards G1, G4, G5, G6, G11(iv), G12, G13, G14, G15 and G21 of the Television Code of Broadcasting Practice which applied at the time of the broadcast complained about. Ms Giles and TVNZ were informed of this decision.

[89] Section 4(1)(c) provides:

(1) Every broadcaster is responsible for maintaining in its programmes and their presentation standards which are consistent with the privacy of the individual

[90] Standards G1, G4, G6, G11(iv) and G13 require broadcasters, in the preparation and presentation of programmes:

G1  To be truthful and accurate on points of fact.

G4  To deal justly and fairly with any person taking part or referred to in any programme.

G5  To respect the principles of law which sustain our society.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

G11  To refrain from broadcasting any programme which, when considered as a whole:

Uses or involves the process known as "subliminal perception" or any other technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness.

G13  To avoid portraying people in a way which represents as inherently inferior, or is likely to encourage discrimination against, any section of the community on account of sex, race, age, disability, occupational status, sexual orientation or the holding of any religious, cultural or political belief. This requirement is not intended to prevent the broadcast of material which is:

factual, or

the expression of genuinely-held opinion in a news or current affairs programme, or

in the legitimate context of a humorous, satirical or dramatic work.

[91] The remaining standards read:

G14  News must be presented accurately, objectively and impartially.

G15  The standards of integrity and reliability of news sources should be kept under constant review.

G17  Unnecessary intrusion in the grief and distress of victims and their families and friends must be avoided. Funeral coverage should reflect sensitivity and understanding for the feelings and privacy of the bereaved.

Broadcasters must avoid causing unwarranted distress by showing library tape of bodies or human remains which could cause distress to surviving family members. Where possible, family members should be consulted before the material is used. This standard is not intended to prevent the use of material which adds significantly to public understanding of an issue which is in the public arena and interest.

G21  Significant errors of fact should be corrected at the earliest opportunity.

Privacy

[92] Ms Giles asked in her formal complaint whether the privacy of the individual applied to "the privacy of the victims".

[93] Section 4(1)(c) of the Broadcasting Act 1989 requires every broadcaster to maintain in its programmes and their presentation, standards which are consistent with the privacy of the individual. "Individual" is defined in the Broadcasting Amendment Act 2000 as having the same meaning as the word "individual" in the Privacy Act 1993. Section 2 of the Privacy Act interprets "individual" as meaning a natural person, other than a deceased natural person.

[94] The Authority has on previous occasions determined that, consistent with the provisions of the Privacy Act 1993, the concept of the privacy of an individual does not extend to a deceased person: see Decision Nos. 1998-076 and 077, and Decision No. 2000-165.

[95] Accordingly, not being deemed individuals within the meaning of the Act, Mr Scott and Mr Scrivener do not have any legal right to privacy. The Authority therefore finds that s.4(1)(c) was not breached in relation to Mr Scott and Mr Scrivener.

[96] The Authority also finds that the programme did not breach the privacy of the Scrivener family. The family had consented to appear on an earlier 60 Minutes programme, "Saints or Sinners". In the Authority’s view, the second programme repeated or summarised some of the views of the family which had been aired in the first programme, and contained no new references to the Scrivener family.

Standard G1

[97] Standard G1 requires that programmes are "truthful and accurate on points of fact". The complainant alleged that a number of inaccuracies had been presented in the programme, including:

that one of the men interviewed had been the victim of drug rape;

that Mr Scott had been the subject of an earlier investigation;

that evidence suggesting predatory sex had been found in the house;

that drug tests had confirmed cocaine/heroin was found in the Scott/Scrivener house; and

that the accused was sane.

[98] Ms Giles did not provide any evidence against which to test the veracity of the claims she made. In these circumstances, the Authority is unable to conclude that standard G1 was breached.

[99] The Authority notes that the complainant also suggested that the 60 Minutes reporter did not check the credibility and motivation of those interviewed. This is a very serious allegation, and one which is strenuously refuted by TVNZ, who advised that the reporter had checked the background of each person interviewed for the programme before conducting interviews. Again, in the absence of any convincing contrary evidence, there is no basis for the Authority to find any breach of standard G1 in this regard.

Standard G4

[100] In relation to the standard G4 complaint, the complainant alleges that the programme was unfair to the deceased and to the Scrivener family.

[101] As to whether the programme dealt fairly with Mr Scott and Mr Scrivener, the Authority must, as a preliminary step, determine whether standard G4 applies to deceased persons. In a previous decision, (Decision No. 1994-124) the Authority determined that standard G4 – dealing justly and fairly with people – did not apply to deceased people. Applying Decision No. 1994-124 to this aspect of the complaint, the Authority finds there is no breach of standard G4.

[102] As to whether the Scrivener family was dealt with fairly, the Authority finds no evidence to support the allegations made by the complainant that this was not the case. It does note that the parties disagreed over the length of telephone calls between the family and the 60 Minutes reporter and whether a reasonable attempt had been made to contact the family. However, it does not consider that its finding turns on whether it accepts one or other parties’ version of events. It was not disputed that the 60 Minutes reporter contacted Ms Giles’ sister to tell her that the programme was going to air. The Authority considers that the broadcaster was not required to take any further action to meet its obligations under standard G4 on this occasion. The Authority agrees with TVNZ’s contention that the wider public interest in the story over-rode the sensitivities of the Scrivener family.

[103] The Authority finds that standard G4 was not breached.

Standard G5

[104] The complainant maintained that the broadcaster had breached the standard requiring that it respect the principles of law which sustain our society. In particular, Ms Giles considered that the broadcaster had breached the principle of sub judice, as she believed the programme had "infringed upon the rights of [the Scrivener] family that there be a fair trial".

[105] The sub judice rule is explained by John Burrows and Ursula Cheer in Media Law in New Zealand as:

While a case is sub judice, the media must not publish material that creates a real risk of prejudice to a fair trial.

[106] In this case, the Authority considers the sub judice rule is unlikely to be applicable. This is so because any discussion in the New Zealand media about an overseas trial cannot constitute a contempt of court in New Zealand. There can be no contempt in relation to the broadcast as the trial will not take place in the same jurisdiction as the broadcast. In any event, the Authority considers that, even if the sub judice rule has extra territorial application, the delay between the broadcast and the trial of Apete Kaisau is likely to be such that there could be no real risk that the trial would be prejudiced. Accordingly, the complainants claim that standard G5 is breached for reasons relating to contempt of court is not upheld.

[107] The Authority notes that the complainant made a number of very serious allegations against the broadcaster relating to what she considered to be "attempts to influence the public viewpoint" and collusion with the defence lawyer for the man who confessed to the murders of Scott and Scrivener, which she suggested might have a "financial basis". The Authority was provided with no persuasive evidence of these claims and finds no basis upon which to uphold a breach of standard G5 in this regard.

[108] The complainant also claimed that standard G5 was breached by statements made by those on the programme which she said might have "legal implications". As an example, she said:

Apete Kaisau’s mentor in New Zealand, Jim, quotes Apete’s mother as saying that he told her: "Mum, I have to do it otherwise he, they will be doing this for years and years to come". If true, is she not an accessory of sorts to the murders."

[109] The Authority does not accept that this statement breaches standard G5. Whether it provides evidence in relation to any crime would be a matter for the Courts, not the Authority. The Authority expresses no opinion on this matter. Furthermore, the wording in standard G5 does not require broadcasters to comply with all legal requirements; rather it requires respect for the principles of law. In practice, the Authority has, in the past, upheld a breach of this standard when a broadcaster encourages a breach of the law. No such encouragement is evidenced on this occasion, nor indeed in any other part of the programme complained about.

Standard G6

[110] Standard G6 requires that broadcasters show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature. This standard is based on s.4(1)(d) of the Broadcasting Act and, consequently, the Authority accepts that balance may be achieved during "the period of current interest". On the basis that the story was, as TVNZ explained, "slow in breaking", the Authority accepts that the material and approach taken in the 60 Minutes item "Saints and Sinners" broadcast on 28 July is relevant to its assessment of whether "Double Lives", broadcast on 18 November, breached standard G6.

[111] The Authority also considers that the circumstances surrounding the deaths of Mr Scott and Mr Scrivener were "issues of a controversial nature" to which Standard G6 applies. Accordingly, it has considered whether balance was achieved in the manner envisaged by the standard.

[112] A majority of the Authority considers that, over the course of the two programmes, "Saints or Sinners" and "Double Lives", balance was achieved given the pace of the revelations surrounding the Police inquiry. The Scrivener family and the son of Mr Scott were extensively interviewed in the first programme. The family painted a picture of a monogamous, caring and civic-minded couple who were the victims of politically-motivated murder. The second programme focussed on allegations which were at odds with the family’s view. However, the Authority does not consider that the programme was unbalanced, particularly in the light of the earlier programme and the references made to the family’s view in the second programme.

[113] In the majority’s opinion, the views of the Scrivener family did not require elaboration in the second programme. Furthermore, the majority considers there is no evidence to suggest that the 60 Minutes reporter was biased, or that the programme had, as the complainant alleged, pursued a viewpoint, based on a comment expressed in the programme, that "John Scott and Greg Scrivener were bad people who deserved to die". The majority therefore concludes that standard G6 was not breached.

[114] A minority of the Authority (Dr Bronwyn Hayward) notes that the second programme was screened four months after the first, and does not consider that it can be assumed that an ordinary viewer would have seen both the first and second documentaries.

[115] The minority notes that the programme complained about made only brief reference to the fact that the Scrivener family alleged that the murders were politically motivated and gave no elaboration by way of a summary of significant alternative points of view about possible motivations for the murders. The minority also notes that the interviewer failed to challenge certain comments made by the Police Commissioner. In the view of the minority, given the lapse of time between the two programmes, the brevity of the summary of significant alternative points of view amounted to a breach of standard G6.

Standard G11

[116] Standard G11(iv) requires broadcasters to refrain from using "subliminal perception" or any other technique which attempts to convey information to the viewer by transmitting messages below or near the threshold of normal awareness.

[117] Ms Giles argued that the footage of Mr Scott carrying something which she considered could have been considered to be a movie camera constituted the use of "subliminal perception". The Authority disagrees. It does not believe that a reasonable viewer would have considered that the footage was of Mr Scott carrying a camera. Furthermore, the Authority is inclined to the view that, in order to breach this standard, it must be established that the programme maker intended for viewers to receive a message "below or near the threshold of normal awareness". There is no evidence whatsoever that this was the case.

[118] The Authority concludes that standard G11(iv) was not breached.

Standard G12

[119] The complainant maintained that the broadcast had breached standard G12 because Mr Scrivener’s school-aged nephews had seen the programme and it had been talked about at school.

[120] The Authority notes that in Decision No 1999-076, it said:

In the Authority’s opinion, it would be quite unreasonable to expect the broadcaster to be mindful of the effect of a programme on each child individually.

[121] Accordingly, the Authority finds that standard G12 is not breached in the manner the complainant described. The responsibility required by the standard is to children generally, not individually, and the Authority does not consider that there is any reason to conclude that the broadcaster had not considered the interests of children generally. It considers that the PGR rating for the programme was appropriate and its application was sufficient to meet the broadcaster’s obligation under standard G12.

Standard G13

[122] The Authority has considered whether Mr Scott and Mr Scrivener were portrayed in the item in a manner which encouraged discrimination against homosexuals.

[123] In the Authority’s view, the programme did not encourage discrimination against homosexuals in general, but instead described the alleged activities and private lives of a homosexual couple as a possible motivation for their murders. The Authority has interpreted standard G13 to mean a high threshold is required before a breach of standard G13 is threatened. On this occasion, the Authority does not consider that this threshold was approached. The Authority declines to uphold this aspect of the complaint.

Standard G14

[124] The complainant requested that her complaint be assessed against standard G14. Standard G14 requires that news must be presented accurately, objectively and impartially. For the reasons given above in relation to standards G1, G4 and G6, the Authority declines to uphold this aspect of the complaint.

Standard G15

[125] Standard G15 deals with news sources and requires broadcasters to monitor regularly the integrity and reliability of those sources. The complainant made a number of allegations about the sources for the programme she complained about. She claimed that the programme contained unsubstantiated allegations. The Authority considers the complainant’s claims were also unsubstantiated and declines to uphold this aspect of the complaint.

Standard G17

[126] The Authority has subsumed this aspect of Ms Giles’ complaint under its consideration of standard G4, as it considers that the issues raised by the complainant under these standards are substantially the same.

Standard G21

[127] As to standard G21, it follows, because the Authority was unable to conclude that the programme contained any factual inaccuracies, it does not consider there were any significant errors which required early remedy. The Authority declines to uphold this aspect of the complaint.

Bill of Rights

[128] 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, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

 

Peter Cartwright
Chair
13 June 2002

Appendix

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

  1. Janice Giles’ Formal Complaint to Television New Zealand Ltd – 11 December 2001
    (plus attachments)
  2. TVNZ’s Response to the Formal Complaint – 16 January 2002
  3. Ms Giles’ Referral to the Broadcasting Standards Authority – 3 February 2002
    (plus attachments)
  4. TVNZ’s Response to the Authority – 13 March 2002
  5. Ms Giles’ Final Comment – 23 March 2002 (plus attachments)