BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The conviction of David Bain for the murder of members of his family has evoked

considerable public discussion. It has also seen the publication of two books, one of

which asserts his innocence while the other agrees with the jury decision as to his

guilt. The case was covered in an item broadcast on 20/20 at 6.30pm on Sunday 4

May 1997. This was prompted by the release of the book asserting both David

Bain's innocence and Police mismanagement of the investigation.

The Otago Police District Commander (Superintendent J Millar) complained to TV3

Network News Ltd that the item was inaccurate, misleading, unfair and unbalanced,

and it did not make clear whether it was a repeat of an earlier programme or a new

programme. In fact, he said, it included new information to which the Police were not

given an opportunity to respond.

Acknowledging that the item on 4 May included both new information and an edited

version of an earlier programme, TV3 pointed to the apparently intransigent stance

taken by the Police for some time, and reiterated following the release of the book, in

refusing to comment on the Bain case. It maintained that the item did not breach the

standards.

Dissatisfied with TV3's decision, on the behalf of the Police Mr Millar referred the

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

For the reasons given below, the Authority upholds the aspect of the complaint which

alleges that the broadcast failed to give the Police an opportunity to respond to the new

material screened.

Decision

The members have watched the 20/20 item broadcast on 4 May 1997 and have read

the correspondence (summarised in the Appendix). They have also watched the full

20/20 programmes on the David Bain case broadcast on 23 and 30 September 1996,

from which substantial extracts were shown on 4 May 1997. In addition, they have

seen a 3 National News interview with Assistant Commissioner Paul Fitzharris on the

case broadcast on 16 April 1997. On this occasion, the Authority determines the

complaint without a formal hearing.

The Broadcast

The conviction of David Bain for the murder of his parents and three siblings has been

the subject of considerable public controversy. Businessman and former All Black

fullback Joe Karam has led the campaign for the release of David Bain. He has

maintained that Robin Bain, David's father, murdered his wife and three children while

David was delivering papers early one morning. Mr Karam argues that Robin Bain, on

seeing David returning home, left a message on the computer exonerating David and

then committed suicide.

The case was explored in some detail in items broadcast on 20/20 on 23 and 30

September 1996. In an allusion to Mr Karam's one-time position as a rugby player,

the presenter explained that the programme was about David Bain's "Last Line of

Defence". In the programme, Mr Karam advanced a number of arguments as to why

he believed David Bain had been incorrectly convicted. For the police, Detective

Senior Sergeant Jim Doyle explained why he considered the convictions were justified

in view of what he termed the "the mountain of evidence".

Mr Karam set out his arguments in a book entitled "David and Goliath" published in

April 1997, and 20/20 broadcast a two-part item on the case as he saw it on 4 May

1997. Described by the presenter as a "revisit" to the items broadcast in 1996, most

of the material, although reduced by about a half, had been screened in the broadcasts

on 23 and 30 September 1996.

The Complaint

Superintendent J Millar, Otago Police District Commander, complained to TV3 about

the 4 May broadcast. Because of the use of the term "revisit", he maintained that the

item was misleading in that it was not clear to viewers whether the broadcast was, in

fact, a repeat or an update. Moreover, he claimed, the May broadcast was "peppered

with fresh material", to which the Police had not been given the opportunity to

respond.

He gave two examples of new information. The first was Mr Karam's claim that the

computer was switched on at 6.42am, rather than 6.44am. The second was the

reference to the discovery by the Police of the lens from a pair of David's spectacles

after three days and despite earlier extensive searches, which Mr Karam described as

"clinching evidence". These instances, Mr Karam asserted, reflected on the

competence of the Police investigation.

There was no attempt, Mr Millar wrote, to provide balance for these serious

allegations against the Police.

Mr Millar also argued that the editing of the broadcasts from September 1996 for the

May 1997 items had been carried out in a biased way. Insufficient effort, he added,

had been made to retain the Police response to the matters raised by Mr Karam.

Overall, he concluded TV3 had constructed a case based on beliefs rather than fact.

The Standards

TV3 assessed the complaint under standards G1, G4, G6, G7 and G19 of the

Television Code of Broadcasting Practice. The first four require broadcasters:

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.

G6   To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.

G7   To avoid the use of any deceptive programme practice in the presentation

of programmes which takes advantage of the confidence viewers have in

the integrity of broadcasting.

The other one reads:

G19  Care must 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.

The Broadcaster's Response

TV3 maintained that the item's introduction, and the use of the term "revisit", ensured

that viewers were aware of what was, and what was not, new material.

Turning to the complaint about the fresh material, TV3 said it was clear from the item

what was new material, and, furthermore, that the comments about it were Mr

Karam's honestly held opinions. TV3 acknowledged that the item contained no Police

response, and pointed out that the Police, from the highest level, had consistently

stated that they did not intend to comment further on the Bain case. Viewers had

been told of the Police attitude, TV3 continued, during the item's introduction.

TV3 did not accept that the editing which reduced the September 1996 broadcasts for

the May 1997 item involved any distortion. Because they were well out of time, it

added, it did not intend to deal with any complaints about the September 1996

broadcasts in 1997.

The Referral of the Police Complaint to the Authority

When the complaint was referred to the Authority, the Police repeated their concerns

about the use of the word "revisit", about the introduction of new material on which

they had not been given an opportunity to comment, and about the editing practices.

The Police focussed on TV3's statement that the item reported that the Police had

refused to comment on the Bain case. It wrote:

How could there be any public understanding when Police never made such a

"decision", nor was any such thing reported. It is true Police have always said

publicly – even before Mr Doyle's interview – that the media was not the right

place for them to debate the Bain case.

The Police recalled that a press release had been issued before Mr Doyle was

interviewed for the September 1996 items which advised that the Police did not

believe that the case should be litigated in the media. However, they noted, this

statement had not stopped journalists from TV3 and elsewhere continuing to seek

comment. In fact, the Police observed, they had continued to comment to the national

media. The Police expressed amazement that, in these circumstances, TV3 told

viewers that the Police had decided not to comment, and that TV3 did not give them

the opportunity to comment on the fresh allegations contained in the May 1997

broadcast.

Further, the Police pointed out, rather than declining to comment on Mr Karam's

book, they had given interviews which referred to the book to both TVNZ and TV3.

TV3's failure to seek comment about the specific allegations contained in the book

before the broadcast complained about, the Police contended, was a serious breach of

the standards relating to accuracy, balance, and fairness.

TV3's Response to the Authority

TV3 maintained its argument that its broadcast on 4 May did not breach the

standards. It provided extensive further material to justify the broadcaster's

contention that the Police had declined to comment on the Bain case.

First, it forwarded to the Authority a tape of the item in which Assistant

Commissioner Paul Fitzharris was interviewed after the publication of Mr Karam's

book. It also forwarded a press release issued at the time by Mr Fitzharris in which

he pointed out that Bain had been through a number of courts, and that the case

"should not be litigated in the media". Other channels, he wrote, existed to deal with

claims of police impropriety.

TV3 stated that the information given by Mr Fitzharris during the interview involved

no more than a repetition of his press release.

Secondly, TV3 recalled, its Dunedin reporter had sought an interview from the Police

at about the time that Mr Karam's book was published, and was told that there would

be no further comment. That same reporter, TV3 added, produced the 20/20 item

complained about.

Speculating whether the Police refusal to comment in fact amounted to being "there

for some purposes but not for others", TV3 supplied the Authority with print media

reports carrying Mr Fitzharris's press release. Nevertheless, it also acknowledged

that as Mr Fitzharris had made a brief comment about the case during the interview,

the statement in the broadcast which said "before the Police decided not to comment",

was technically incorrect.

In summary, TV3 wrote to the Authority:

* the Police made it abundantly clear they were not going to comment on the

specifics of the contents of Joe Karam's book. The only comment made

was on matters procedural, i.e. Mr Karam should take his claim to the

authorities.

* the broadcast of 4 May, when viewed in its entirety, is fair and balanced.

* both the original broadcast of "Last Line of Defence" and the broadcast of

4 May complied with the Television Code of Broadcasting Practice with

the one technical exception referred to ... above. The Standards

Committee accepts there is a technical breach of Standard G1 in that

Assistant Commissioner Fitzharris did comment in a 3 National News

broadcast on 16 April.

However, as is obvious from the attached newspaper clippings, it is clear

the Police position with regard to the specifics of the Bain issue is that of

'no comment'. Given that position the Standards Committee believes

that, aside from advising [the reporter] that she should have directly

confirmed the Police position for herself, and that the phrase 'before the

Police decided not to comment' is technically inaccurate, there should be

no further action on the part of TV3.

The Authority's Findings

The Authority addresses initially the selection of standards under which TV3

assessed the complaint. In view of the reference in the complaint to, for example,

inaccuracy, unfairness, and bias, it accepts those nominated by TV3. It also notes

that in the second paragraph of the letter of complaint, the Police expressed concern

about the absence of an opportunity to respond. It was an issue raised by the Police

again in the complaint with the reference to their concern about the "fresh material"

included in the May broadcast.

In these circumstances, the Authority is of the view that the complaint should, in

addition to the standards noted above, be assessed under s.4(1)(d) of the Broadcasting

Act 1989. It requires broadcasters to maintain standards which are consistent with:

(d) 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.

Four aspects of the complaint have been distilled from the correspondence.

"Revisit"

Whereas the Police argued that the use of this term was deceptive, TV3 maintained

that it was appropriate, and the item clearly explained what was, and was not, new

material. The Authority considers that although a little ambiguous, the word "revisit"

adequately described the broadcast.

The Police decision not to comment on the Bain case

There is no doubt that the Police have resisted for some time what they see as the re-

litigation of the Bain case in the media. Nonetheless, the Bain case has aroused

widespread interest in the community. The accuracy and relevance of some evidence,

not disclosed at the trial but explored extensively in the 20/20 items broadcast in

September 1996, raised questions for some about the competence of the Police

investigation and, thus, the guilt of David Bain.

As these issues have been assessed extensively through the court hierarchy, it is

understandable for the Police to argue that any remaining questions of Police

incompetence should be put through official channels rather than aired in the media.

The Authority notes that, shortly after the broadcast complained about, the Police

themselves referred the Bain case to the Police Complaints Authority.

Somewhat sceptically, TV3 asks whether the Police attitude to the media prior to the

May broadcast amounted to being there for some purposes but not for others.

In the Authority's opinion, a seemingly diverse response over time did not allow TV3

to assume that it could accurately predict Police reaction whether it would respond to

the new material advanced by Mr Karam and contained in the May item. By failing to

seek a response from the Police about the fresh material contained in the 4 May

broadcast, the Authority considers that TV3 contravened the requirement in s.4(1)(d)

of the Act.

The Authority notes that TV3's Standards Committee itself believed that 20/20

should have clarified the matter before the 4 May broadcast. The Authority agrees,

and decides further that because the Police have made it a central aspect of their

complaint, the lapse constituted a breach of the standards.

Editing

In support of its complaint about TV3's editing for the May item, at a late stage in

the complaint process the Police sent the Authority a full transcript of the interview

with Mr Doyle undertaken by TV3 before the broadcasts in September 1996. The

content of these broadcasts, it should be repeated, were re-edited for the broadcast in

May, and it was the May broadcast about which the Police complained.

TV3 objected to the introduction of the full transcript. It claimed that the Police were

inviting the Authority to consider matters that were well outside the statutory time

limit for formal complaints.

The Authority does not accept this contention, and it is satisfied that it is appropriate

for it to consider this material. It wishes to make clear that it has put the editing

undertaken for the September 1996 broadcasts to one side. This is not part of the

complaint and, as TV3 observes, the Authority is time barred from considering it at

this stage. Rather the Authority has assessed the May item on the basis whether the

editing of the full interview, and the re-editing undertaken following the September

item, were carried out in a way which either distorted the views expressed by Mr

Doyle, or in such a way that it was unfair to him.

The Authority has viewed the September 1996 broadcasts as part of the process of

assessing this complaint. Nevertheless, the Authority has taken full cognisance of

TV3's submission and, it repeats, the conclusions it reaches on editing refer only to

the broadcast in May about which the Police complained.

The Authority notes that some aspects of Mr Karam's allegations were not addressed

in either the September or May broadcasts. These included the comments regarding

the position of the curtains in the room where Robin Bain died; whether all the blood

on Robin Bain's clothing was tested for other family members' blood groups; whether

Robin Bain's head was moved at some point in the investigation; and the methods

used by the Police in reconstructing the crime after David Bain's arrest.

In the item broadcast in May, there was little presented on the fact that the allegations

made by Dean Cottle, a possible witness, had been rejected by the Police Complaints

Authority, and that the Court of Appeal and the Privy Council had all supported the

view of the trial judge on the inadmissibility of Mr Cottle's evidence. Further, it

omitted Mr Doyle's statement that there was no evidence that Robin Bain took part

in the killings.

The broadcast in May also contained the assertion that the Police had decided not to

comment on the case, while, conversely, including extensive comments from Mr

Doyle.

When the May broadcast dealt with motive, it was stated that one of his daughter's

had confided that she was going to tell her family about an alleged incestuous

relationship with her father. However, it was not made clear that the source for this

information was Mr Cottle, a witness who, the trial judge had decided, was unreliable.

Moreover, the May broadcast did not note – as had occurred in the September ones –

that a Police commendation had been given to the inquiry. These matters would have

furnished the May item with some balance to Mr Karam's claims.

In summary, these omissions resulted in the May broadcast having a different

weighting. By not referring to the Police Complaints Authority, the Appeals and the

commendation, the impact of the Police perspective was reduced. As a consequence,

the item implied, incorrectly, that there were other avenues for redress and

investigation which had not yet been explored.

Having examined the material which was advanced in support of the aspect of the

complaint which referred to the editing, the Authority was then required to assess

whether, under standard G19, the interview had been edited in such a way so as to

distort the contents of either the full interview or the earlier broadcast. On balance the

Authority concludes that the editing did not involve distortion to the extent that the

standard was contravened.

Overall

In the Authority's opinion, the 4 May broadcast would have raised for viewers

questions about the competence of the Police investigation. The impression left was

that Mr Karam's case justified a thorough, and thoughtful, response from the Police.

The item began as an examination of the case advanced by Mr Karam, which was

repeated, and to some extent elaborated on, in his book. During this process, there

was a tendency to present Mr Karam's arguments relatively unchallenged. This

contrasted with the discussion with Mr Doyle when criticisms were raised about the

Police case. Given that the statutory time limits have expired, the Authority

expresses no views on the broadcasts on 23 and 30 September 1996. A rebroadcast

can of course attract complaints. However, on this occasion, some fresh material was

broadcast on 4 May and as the Police were not given an opportunity to respond, the

Authority considers this to be a breach of s.4(1)(d) of the Act. As fresh material was

screened in the item, for example, the serious allegation about the delay in finding the

spectacle lens, the Police should have had the chance to reply. Had this happened,

then perhaps an overall impression of unfairness on the part of the broadcaster may

have been dispelled.

For the reasons above, the Authority upholds the complaint that the broadcast

by TV3 Network Services Ltd of an item on 20/20 on 4 May 1997 breached

s.4(1)(d) of the Broadcasting Act 1989.

It declines to uphold any other aspect of the complaint.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Broadcasting Act 1989.

TV3 has argued that the programme did not breach the standards (other than on a

"technical matter"), and has advanced an extensive case as to why the failure to seek

comment from the Police about the new material included in the 4 May broadcast was

not a contravention of the standards. The Authority rejects these explanations. The

broadcast was another item in an ongoing story which has raised considerable

controversy about the conviction and life sentence of a young man for the murder of

five members of his immediate family.

Because there is a high level of public interest, compliance with the standards, in the

Authority's opinion, was a high priority. The Authority observes that the issues

dealt with in the programme were not only controversial; they were complex, too, in

terms of the facts. As the ongoing controversy shows, there is room for more than

one opinion on the outcome of the case, and the way it was handled.

In those circumstances, and given the time constraints of such a programme, the

Authority accepts the inevitability of some strands of argument becoming highlighted

at the expense of others. It is not persuaded that, given the degree of unfairness which

resulted in this instance, it was of such a magnitude as to warrant an order.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
4 December 1997

Appendix

New Zealand Police's Complaint to TV3 Network Services Ltd – 27 May 1997

Superintendent J Millar, Otago District Commander with the New Zealand Police,

complained to TV3 Network Services Ltd about an item on the Bain case broadcast on

20/20 at 6.30pm on Sunday 4 May 1997. Mr Millar maintained that the item was

inaccurate, unbalanced, and misleading.

Recalling that TV3 had screened a two-part documentary on the Bain case in 1996,

Mr Millar said part of that item was screened again on 4 May. However, it was

misleading in that it was not stated in the latter broadcast whether the current item

was a repeat or an update. While the introduction had referred to a "revisit", this term

was ambiguous given the continuing interest in the case.

The item had shown parts of interviews with Detective Senior Sergeant Jim Doyle and

Mr Joe Karam, first broadcast in 1996, but it was "peppered with fresh material"

which, Mr Millar wrote, the Police had not been asked to respond to. That was unfair

and unbalanced. Mr Karam seriously questioned aspects of the Police investigation

and maintained that Robin Bain, the father, not David Bain, was the murderer.

Two examples were listed of new information given in the 4 May broadcast. The first

instance showed the reporter stating that it had been "exposed" by Mr Karam that the

computer was switched on at 6.42am rather than 6.44am. Arguing that this amounted

to a breach of standard G7, Mr Millar said it was a serious allegation on which the

Police were not asked to comment. The second example referred to the discovery of

the lens from a pair of spectacles three days after the murders and following extensive

Police searchers, which Mr Karam, it was said, described as "clinching evidence".

There was no attempt, Mr Millar wrote, to provide balance to this serious allegation

of Police wrong doing.

Further, Mr Millar continued, some of Mr Doyle's comments in the original broadcast

had been edited in such a way "that only token efforts were made to create balance".

Pointing out that the Bain case was complex and of interest to many, Mr Millar said

that viewers watched shallow and biased journalism. TV3, he continued, paid scant

attention to the standards, and broadcast a programme which left the impression that

an injustice had been done.

As an example of this aspect of the complaint, the script regarding "securing the

scene" was cited, in both the original and the later broadcasts. In the first programme,

the Police had been allowed to respond to the serious allegations, while in the second,

the Police comment was brief and was mingled with criticism from Mr Karam, and the

reporter's voice-over.

At the end of the programme, Mr Millar observed, Mr Karam had:

* Made assertions that photos were different to each other, alleging

things had been moved.

* Made an assertion that not all the blood on Robin Bain's clothes was

tested, inferring that it should have been for a better conclusion. Mr

Karam had said: "If there was other blood it would seem an

inescapable conclusion that he (Robin) was the killer".

* Made the assertion that "perhaps his (Robin's) head was moved"

before the photos showing the position of the body were taken.

Mr Millar added:

Despite the fact that these hinted at serious Police wrong-doing, none of these

insinuations were put to police for comment during the two-hour interview

with Ms Reid, or subsequently before the programme went to air. That is a

blatant abuse of Broadcasting and accepted journalism standards. ...

Crucial facts were ignored because the reporter and producer seemed hell-bent

on proving that Mr Karam had legitimate problems with the case. Anything

substantial that might have made Mr Karam's claims seem illogical or wrong,

however, was blatantly ignored.

Overall, Mr Millar concluded, TV3 had constructed a case based on what it believed,

rather than on fact.

Mr Millar sought a public acknowledgment from TV3 that the item breached the

standards, and a full public apology to Mr Doyle.

TV3's Response to the Formal Complaint - 20 June 1997

TV3 assessed the complaint under standards G1, G4, G6, G7 and G19 of the Codes

of Broadcasting Practice.

Dealing first with the item's introduction, TV3 maintained that it was perfectly clear

to viewers when the original item had been filmed, and the script of the 4 May

broadcast had enabled viewers to understand what was, and what was not, new

material. The introduction also explained that the Police, after Karam's book was

released, had decided not to comment.

Turning to what the complaint described as fresh material, TV3 said that the book

"exposed" new information relating to the time that the computer was turned on. It

was also Mr Karam's honestly held opinion and, TV3 noted again, that the Police at

the highest level had made it clear that they were not going to comment further on the

Bain case.

It was also appropriate, it said, to introduce the new material relating to the glasses,

which had been an issue raised in the first programme, and the new material advanced

was attributed to Mr Karam. A viewer, TV3 insisted, would not have been misled.

In regard to the editing, TV3 said that material from both Mr Doyle and Mr Karam in

the 1966 broadcast had been edited and, it wrote:

Overall, and it can only be assessed overall, the TV3 Standards Committee

believes the editing neither favoured nor disadvantaged the Police or Joe Karam

but was, on balance, a fair reflection of the original item.

TV3 also maintained that Mr Doyle had been given a fair opportunity to respond to

key points in both programmes.

With regard to the aspect of the complaint about the assertions made by Mr Karam,

TV3 stated that they were all matters canvassed in the original programme. As the

time under which complaints about the first programme had to be considered had

elapsed, TV3 declined to deal with the matter.

TV3 declined to uphold any aspect of the complaint.

The Complainant's Referral to the Broadcasting Standards Authority – 11 July

1997

Dissatisfied with TV3's response, on behalf of the Police, Superintendent Millar

referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989. He made his comments under the following headings.

Revisit

Under this heading, Mr Millar began:

Police maintain neither the introduction to the current affairs item, nor the

script, made it clear that most of the programme and the interview with

Detective Senior Sergeant Doyle was a repeat.

He alleged that this was a breach of standard G7, adding that some people who had

not seen the first programme, believed that the police were giving an extended

interview for the first time.

No Comment
Mr Millar stated:

Police take issue with TV3's assertion that Police made a decision not to

comment (on the Bain case) after the interview with Detective Senior Sergeant

Doyle on the original programme. This was not only untrue and breached a

Broadcasting standard in itself, it also failed as an attempt by TV3 to indicate

when Mr Doyle's interview was given.

The Police, he continued, before Mr Doyle's interview had said that they believed

that the case should not be litigated in the media – but that had not stopped

journalists, including those from TV3, from seeking an interview. Police had

participated in the first programme and had continued to comment to the media.

However, TV3 decided not to approach the police on this occasion and, Mr Millar

suggested, the "decided not to comment" explanation was "a convenient excuse for a

shoddy oversight". It was an action, he argued, which breached the standards relating

to accuracy, fairness and balance.

Fresh Material

Mr Millar wrote:

Police maintain, despite TV3's denial, that the recent "revelation" about the

computer timing, inserted into the new programme, was deceptive and a breach

of Standard G7. How could the viewer have understood that when Ms Reid

said "But Karam has since exposed.." that this expose took place after the

original broadcast? On watching it, Ms Reid's voice does not change, nor does

the shot of her and Mr Karam talking on the street. Yet she inserts new

information which could easily have been mistaken as part of the original

broadcast. Police believe TV3 could not resist the urge to tamper with the

original programme to beef up their story with the latest "revelation."

He also objected to the introduction of this material – serious allegations – without the

Police being asked to comment.

Editing

Maintaining that the item was edited in a way favourable to views advanced by Mr

Karam, the police said that the new material was neither fair nor balanced in itself.

Although Mr Karam's interview might have been edited, Mr Millar contended that

Mr Doyle was dealt with unjustly and unfairly. He continued:

Crucial facts were ignored because the reporter and producer seemed hell-bent

on proving that Mr Karam had legitimate problems with the case. Anything

substantial that might have made Mr Karam's claims seem illogical or wrong,

however, was blatantly ignored. Mr Karam says in his book he spent three

months working with TV3 on this story. Police had at most a week's notice

of the questions that would be asked.

Repeating the complaint that the item constructed a case – rather than involved

competent journalism – Mr Millar again sought a broadcast acknowledging the errors

and an apology to Mr Doyle.

TV3's Response to the Authority – 19 August 1997

Adopting the format used in the referral, TV3 reported to the Authority on the

following points.

Revisit

TV3 maintained that the Police were placing undue emphasis on the word "revisit".

Citing the introduction, TV3 argued that it had clearly explained the nature of the

current broadcast. Moreover, most viewers would have seen the initial programme

and the language used would have led them to the conclusion that the item was a

repeat, an update, or a revisit of an earlier programme.

No Comment

In view of the information in the referral, TV3 confirmed that Assistant Commissioner

Paul Fitzharris was interviewed on 16 April. He had said at the time:

He (Karam) has been making assertions about the way the Police acted. If he is

saying they acted improperly we say let us see what that evidence is, give it to

me, give it to the Commissioner of Police or, more importantly, give it to the

Police Complaints Authority, an independent body who can examine that.

Enclosing a tape of that interview, TV3 also forwarded a copy of a press release put

out at the time by Mr Fitzharris in which he stated "quite unequivocally" that the

Bain case would not be litigated in the media. The interview on 16 April was a

reiteration of the press release. TV3 also supplied press reports which indicated that

the police did not intend to comment on either the Bain case or Karam's book.

About the same time, TV3 added, its Dunedin reporter sought an interview from the

Police. He was advised that there would be no further comment. That reporter, TV3

added, produced the 20/20 item complained about.

TV3 wrote:

It will also be evident to the Authority that, given Mr Fitzharris' only comment

was on procedural matters ie that Mr Karam should refer his concerns to the

'proper authorities', the 3 National News reporter had to resort to file footage

containing comments from Detective Senior Sergeant Doyle to provide his news

story with some semblance of balance.

It continued:

The [TV3] Standards Committee is somewhat at a loss as to how the Police say

on the one hand 'no comment' then on the other and after the event say,

hypothetically, they may have been prepared to comment. Can they 'be there

for some purposes but not for others'? However, given the fact Assistant

Commissioner Fitzharris did make brief comment on the case it must be

accepted that the statement, 'before the Police decided not to comment', is

technically incorrect.

Fresh Material

Because of the publicity given to Karam's book before the broadcast on 4 May, TV3

considered that there was no need for the second broadcast to be an exact replica of

the first. The comments made regarding the computer timing, it added, were relevant,

accurate in context, and not misleading. With regard to the material about the glasses,

TV3 said it was clear that both old and new material was used and the latter was

relevant, accurate and/or an honestly held opinion.

Editing

Following a review of both programmes, TV3 pointed out that both had been edited.

In the 4 May broadcast, it said, the Police were given an opportunity to respond to

comments about the Police investigation. The second part of the item, it wrote,

consisted largely of the Police case.

Pointing out that there had been no complaint about the first broadcast, TV3

maintained that "fair" editing had taken place.

Conclusion

TV3 observed that the police announced an internal review of the Bain case two days

after the broadcast of the 20/20 item. It concluded:

* the Police made it abundantly clear they were not going to comment on the

specifics of the contents of Joe Karam's book. The only comment made

was on matters procedural, ie Mr Karam should take his claims to the

authorities.

* the broadcast of 4 May, when viewed in its entirety, is fair and balanced.

* both the original broadcast of 'Last Line of Defence' and the broadcast of

4 May complied with the Television Code of Broadcasting Practice with

the one technical breach of standard G1 in that Assistant Commissioner

Fitzharris did comment in a 3 National News broadcast on 16 April.

However, as is obvious from the attached newspaper clippings, it is clear

the Police position with regard to the specifics of the Bain issue is that of

'no comment'. Given that position the Standards Committee believes

that, aside from advising Ms Reid that she should have directly confirmed

the Police position for herself, and that the phrase 'before the Police

decided not to comment' is technically inaccurate, there should be no

further action on the part of TV3.

The Complainant's Final Comment – 19 September 1997

The Police (Southern Region Commander Paul Fitzharris) maintained that TV3's

response continued to be unsatisfactory.

Revisit

Because they attached great importance to the correct meaning of words, unlike TV3

apparently, the Police continued to argue that the term "revisit" was inappropriate as

it did not advise viewers clearly as to the status of the programme screened.

The Police also stated that TV3, by admitting that it had not sought comment from the

Police, acknowledged a breach of standard G6. They wrote:

Attempting to deduce from news stories in newspapers whether or not Police

would comment in any detail on their second 20/20 programme about Bain

simply was not good enough.

The Police recalled that TV3's Mr Turner sought an interview on Mr Karam's book

on the day that it was launched – 16 April – for 3 National News. There was never

any mention, then or later, about a repeat or an update of the 20/20 item.

Fresh Material

The Police maintained their case that the broadcast did not make clear that the

information about the computer timing was new material, and that they were not

asked to comment on the new material used.

Editing

Noting that Joanne Galer, the Otago Police Communications Officer, had complained

that Mr Doyle had been treated unfairly in the original broadcast, the Police said that

the use of some of the same material had prompted a formal complaint after the

broadcast on 4 May. The Police expressed the opinion that both programmes were

heavily weighted in favour of Mr Karam, and that the compelling information

provided by Mr Doyle had been omitted.

Summary

The Police concluded:

The complaint still stands in its entirety. The status of the 20/20 programme on

4 May was unclear, the right to reply to fresh material was not given to Police,

and a factual error was made in the introduction. Most importantly, Mr

Doyle's interview was edited in such a way that he appeared not to give strong or

substantial replies to Mr Karam's allegations, when the interview transcript ...

shows this was not the case.

Further Correspondence

In a letter to the Authority dated 1 October 1997, TV3 expressed concern that the

Authority was being invited to consider matters which were well outside the statutory

time limits for formal complaints. It pointed out that the Police had not made a formal

complaint at the time of the original broadcast. As it contended that the transcript

was only relevant to the issue of whether the editing had distorted Mr Doyle's views

expressed in the September broadcasts, TV3 argue that the transcript should be

excluded from the Authority's deliberations.

In a response from the Police dated 13 October, it was noted that TV3 had not

objected to the use of quotes from the transcript contained in the initial letter of

complaint. The Police maintained that a consideration of the transcript was crucial in

assessing the complaint that the 20/20 item involved editing which was unfair to Mr

Doyle.