BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Permission to film parts of the trial and retrial of Dr Vicki Calder in the High Court for

attempted murder was granted by the presiding judge. Subsequently, parts of the

trials were screened by TV3 in the documentary Inside New Zealand: Crown versus

Calder, broadcast on 5 August 1997, and in promos for the documentary.

Dr Gary Reynolds, a Crown witness at the trials, complained directly to the

Broadcasting Standards Authority, under s.8(1)(c) of the Broadcasting Act 1989, that

his privacy had been breached by the broadcasts of him appearing on the witness

stand at the trial. He advised that he had requested that his testimony not be

screened, particularly in any promo for the documentary.

When responding, TV3 Network Services Ltd, advised the Authority that coverage of

Dr Reynolds came within the parameters of a pilot scheme operated by the Courts for

the televising of trials. TV3 explained that the producers of the documentary followed

the presiding judge's directions for the filming of the trials, and it maintained that TV3

had complied with the Court's directions in its broadcasts. Accordingly, TV3

considered that the privacy complaint should not be upheld.

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

Decision

The members of the Authority have viewed the programme complained about and

have read the correspondence (summarised in the Appendix). On this occasion, the

Authority determines the complaint without a formal hearing.

Dr Reynolds, the complainant, was a key witness for the Crown in the prosecution of

Dr Vicki Calder for the attempted murder of Professor David Lloyd. The jury in the

first prosecution was unable to reach a decision and, after a second trial, Dr Calder

was acquitted.

The case aroused considerable public interest and was the subject of an Inside New

Zealand documentary, called Crown versus Calder, broadcast by TV3 at 8.30pm on 5

August 1997. The documentary included film of some of the witnesses giving

evidence. This footage had been filmed by the programme makers during the trials.

Dr Reynolds complained that the broadcast breached the obligation contained in

s.4(1)(c) of the Broadcasting Act 1989 under which broadcasters are required to

maintain standards consistent with the privacy of the individual.

Shortly before he gave evidence, Dr Reynolds recalled, he had specifically asked not to

be filmed. The prosecution had told him that that was not possible, but he could have

his face blanked out on the television screen. As he felt he would look like a criminal,

and as his name would not be suppressed, he declined the offer.

During both trials, he said that he had appeared on the evening news but now, without

permission, he was shown in a documentary dealing with the trial. Furthermore, part

of the footage had been used in a promo for the programme. Dr Reynolds said that he

was not given an opportunity to refuse to be filmed, and that there had been no effort

to obtain his informed consent.

When asked to comment on the complaint, TV3 advised that the filming of Dr

Reynolds fell within the parameters of a pilot scheme operated by the Courts for the

televising of trials. TV3 considered that Dr Reynolds appeared to be suggesting that it

should change the rules about court proceedings. That was not within its power, and

TV3 contended:

All material used in the documentary and promo, was presented in a way which

gave accurate, impartial and balanced coverage, and was not edited in such a way

as to have taken the evidence out of context, or implied another meaning other

than the one given in the full transcript of proceedings.

As the necessary approval to film had been sought and obtained, TV3 did not accept

that Dr Reynolds' privacy had been breached. In view of the relevant rules about

which he had been unaware, Dr Reynolds did not contest directly the statements made

by TV3. However, he maintained his complaint on the basis that he had not been

provided with an opportunity to object to the coverage and, it appeared, that the

Court's ruling regarding coverage had not approved that part of the footage be used for

a promo.

The Authority has considered the directions of the Court (Tipping J), relating to the

media coverage of the first Calder trial. The Court advised that the directions for the

second trial were the same as the first.

The papers recorded that before the trial of Dr Calder in the Christchurch High Court

for attempted murder, Ninox Films Ltd applied to the presiding judge, Justice Tipping

for permission to film the trial. Similar applications were made by TVNZ and TV3

and all were opposed by the Crown and the accused. Ninox advised that it intended

to make a documentary for broadcast after the trial was over.

The Crown raised the issue of privacy and Tipping J's judgment (T No. 154/94, 5

September 1995) included the following comment:

I am mindful of privacy aspects as far as the three principal people are

concerned and indeed the witnesses generally. It is, however, inherent in the

whole concept of televising court proceedings that the privacy of the parties and

the witnesses viewed as individuals is further jeopardised. Those authorising

the pilot must be deemed to have taken the view that this individual detriment is

outweighed by general public benefit. Whether that is so is not for me to say.

In considering the Crown's concern about the impact of the television camera on its

witnesses, Tipping J did not accept that presence of the television dimension was

"likely to be the straw that breaks the camel's back". Nevertheless, he granted

protection for those he described as the "three main protagonists"; the accused, Dr

Calder; the person she was accused of attempting to murder, Professor Lloyd; and his

wife, Linda Newstrom Lloyd.

In view of this information, the Authority concludes that the use of footage of Dr

Reynolds in the documentary did not involve an invasion of his privacy. Moreover,

as permission was given by the Court to use the footage of Dr Reynolds in the

documentary, the Authority does not consider the extracts used in the promo

constituted a breach of his privacy.

Whether brief and accurate extracts from the trial used in the promo were

contemplated by the Court's directions is not an issue to the Authority. That is a

matter for the Court. The Authority's jurisdiction is limited to determining in the

context of any complaint made, whether there has been a breach of broadcasting

standards.

On this occasion, the Authority finds that the rulings by Justice Tipping answer the

matters raised for consideration in the privacy complaint. Moreover, this was a

broadcast of Court proceedings open to the general public and covering a matter of

high public interest. That alone would justify the broadcast in terms of the relevant

privacy principles which the Authority has adopted.

The Authority notes however that Court permission to film will not release a

broadcaster from obligations to meet the Codes of Practice. As well as meeting the

presiding judge's guidelines, a broadcast must comply with the central requirements in

s.4 of the Broadcasting Act 1989 relating to good taste and decency, and balance.

These are standards matters which the Authority will consider in appropriate

complaints.

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

Signed for and on behalf of the Authority

Sam Maling
Chairperson
4 December 1997

Appendix

Dr Gary Reynolds' Complaint to The Broadcasting Standards Authority - 17

August 1997

Dr Gary Reynolds of Auckland complained directly to the Broadcasting Standards

Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast by TV3 of

him giving testimony at the trial of Dr Vicki Calder was a breach of his privacy. He

advised that he appeared on 3 National News, on the documentary Inside New

Zealand: Crown versus Calder broadcast on 5 August 1997, and on a promo for the

documentary.

Dr Reynolds considered there to have been a breach of his privacy for the following

reasons:

_ There was no opportunity for him to refuse the filming of his evidence. He was

given the option of having his face blanked out, but he had refused this on the

grounds that his name would not be suppressed.

_ There was no attempt by the prosecution team at the trial to attempt to explain to

him the implications of having his evidence filmed.

TV3's Response to The Authority - 17 September 1997

When asked to comment on the complaint, TV3 Network Services Ltd advised that

permission had been granted to Ninox Films, the producers of the Inside New Zealand

item, to film all proceedings at the trial of Dr Calder. It stated that the application to

the presiding judge was clear in its explanation that coverage sought was for a

documentary, and that a promo would be cut from the material. Permission was

granted by Justice Tipping, it said, to film all proceedings at the trial, except for the

jury, the public gallery, the accused and any witnesses who were granted exclusion

under the Courts Consultative Committee's rules (for the televising of trials). TV3

advised that during the first and second trials of Dr Calder, Dr Reynolds had not been

given an exemption by the judge and therefore was cleared by the court to be filmed as

a witness.

Moreover, it advised that TV3, with other broadcasters, had been given permission to

film footage of the trials in their news coverage.

As for Dr Reynolds' complaint, TV3 contended that his concern focussed on the

procedure and function of the court itself, and was not an area of jurisdiction for the

film maker. It maintained that all the material used in the documentary and promo

was presented in a way which gave accurate, impartial and balanced coverage, and was

not edited in such a way as to have taken the evidence out of context, or implied

another meaning other than the one given in the full transcripts of proceedings.

TV3 considered that Dr Reynolds' complaint should not be upheld.

Dr Reynolds' Comment to the Authority - 26 September 1997

In responding to TV3's letter and to the document "Rules Regulating Coverage by the

Electronic Media Of Court Proceedings", Dr Reynolds stressed that at no point was

he provided with the opportunity to object to the coverage of his testimony. He

advised that numerous applications had been made on his behalf to the Crown

solicitor, to TV3, and to the makers of the programme requesting that coverage of his

testimony not be used, especially in promos for the programme.

Dr Reynolds said that he continued to experience ramifications, both to his career and

character, following the screening of the programme and the promo.

TV3's Response to the Authority - 18 September 1997

TV3 advised that it did not wish to comment further.