BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The recent publication by convicted murderer Gay Oakes of her book "Decline into

Darkness" was referred to in a 20/20 item entitled "Fighting Back", broadcast on 3

August 1997, which reviewed her case and in its context, the unsuccessful defence of

battered woman's syndrome she advanced.

Mr Hill, a step-brother of Douglas Gardner, the man murdered by Ms Oakes and

buried in her garden for fourteen months, complained to TV3 Network Services Ltd

that the item was inaccurate and unbalanced. It was inaccurate, he said, as the

evidence did not prove that Mr Gardner had been violent towards Ms Oakes, and it

was unbalanced as it had dealt with Mr Gardner and his family insensitively.

Mrs Gardner, mother of the victim, complained that the 20/20 programme intruded

into the grief of the family by broadcasting pictures of Douglas Gardner, the grave

site, and other pictures relating to the circumstances of his death. Mrs Gardner also

complained that the summing up by the presenter of the programme was inappropriate

and contained statements which had not been proven as fact. She considered that the

family's privacy had been breached by the broadcasts.

Arguing that the evidence revealed that Mr Gardner had been violent even if the

defence was not successful, TV3 maintained that the item had focussed on battered

woman's syndrome in a balanced way. It considered that the pictures broadcast were

not offensive or objectionable to ordinary people, and the public facts surrounding Mr

Gardner's death were legitimately in the public domain as matters of public interest.

TV3 advised that while the reporting of news and current affairs did at times cause

hurt, it could not be censored.

Dissatisfied with TV3's decision, Mr Hill and Mrs Gardner referred their complaints

to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaints.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendices). In this instance, the Authority

determines the complaints without a formal hearing.

The Programme

In 1994, Gay Oakes was convicted of the murder of Douglas Gardner and sentenced

to life imprisonment. Evidence was presented that she poisoned him early in 1993 by

mixing prescription pills in his coffee and, after he died, she dug a grave in her garden

and he was buried there for 14 months. The defence of battered woman's syndrome

was advanced at the trial, but it was not successful. That defence was also rejected by

the Court of Appeal and the Privy Council.

Ms Oakes wrote an account of these events, entitled "Decline into Darkness", and it

was published in August 1997. TV3's current affairs programme, 20/20, which had

screened earlier stories on the trial, broadcast an item on 3 August called "Fighting

Back". 20/20's earlier coverage had included an interview with Ms Oakes when she

was on bail following her conviction, and before sentence.

The item screened on 3 August contained biographical details about Ms Oakes, details

about her relationship with Mr Gardner, a summary of the murder, and a lengthy

interview with Judith Ablett-Kerr QC, who argued Ms Oakes' case before the Privy

Council. The Authority acknowledges that the trial of Ms Oakes has been a high

profile event, especially in Christchurch, and that it has received extensive media

coverage.

The Complaints

Two members of the Gardner family complained to TV3 about the item - Gladys

Gardner, who is the victim's mother, and Allan Hill, a step-brother of the victim.

Mr Hill considered that the item was unbalanced in that it advanced the defence

arguments put at the trial, while omitting the evidence which referred, for example, to

Ms Oakes' gambling and drinking. Further, he said, it gave insufficient recognition to

the conclusion reached at the trial and the appeals, that Ms Oakes had committed what

he called a cold and calculated murder. Mr Hill also said that despite a number of

requests not to use photographs of Mr Gardner and the grave in the garden, TV3

insensitively continued to use them.

This last point was the focus of Mrs Gardner's complaint. She considered the use of

the pictures to be inconsiderate to a family which was trying to put the tragic death of

a family member behind them. She contended that it was a breach of privacy. In

addition, she referred to the presenter's comments at the end of the item which, she

said, were presented with an attitude which was condescending to the family, and

which suggested that matters of opinion were proven facts.

The Standards

Following an exchange between TV3 and the complainants about the status of the

correspondence, TV3 assessed the complaints under standards G1 and G6 of the

Television Code of Broadcasting Practice, and s.4(1)(c) of the Broadcasting Act 1989.

Standards G1 and G6 require broadcasters:

G1        To be truthful and accurate on points of fact.

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

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

Section 4(1)(c) requires broadcasters to maintain standards consistent with the privacy

of the individual.

TV3's Response to the Complainants

Dealing first with standard G1, TV3 advised Mr Hill:

The Committee draws to your attention comments made by Justice Hardie Boys

in his delivery of the judgement on behalf of the Appeal Court, ". . .  There has

been a lengthy relationship, from which four children have been born, but it was

marked by numerous episodes of violence towards her and, it appears, by sexual

abuse of one of her two children by her earlier marriage".

           
Justice Hardie Boys also said ". . . from both Crown and Defence witnesses the

jury learnt in very full detail of the violence that Mrs Oakes has endured".

Mr Hill attached to his complaint some transcripts of the evidence given at Ms Oakes'

trial. As they were incomplete, TV3 did not accept that they were of assistance in

deciding whether Mr Gardner was violent towards Ms Oakes.

As for standard G6, TV3 maintained that the item was about battered woman's

syndrome, and how it related to Ms Oakes' case. It pointed out that battered woman's

syndrome was a legitimate aspect of a defence to a criminal charge, and Ms Ablett-

Kerr QC had spoken about its applicability to the Oakes' case. Referring again to

Justice Hardie Boys' comments, TV3 argued that the evidence of Mr Gardner's

violence towards Ms Oakes did not require balancing comment. It added:

[TV3] notes friends and family of Mr Gardner have had the opportunity, on the

TV3 Network and on numerous occasions around the time of the trial, to

challenge evidence of Mr Gardner's violence towards Ms Oakes.

The privacy complaint was considered under principles (i) and (ii) of the Privacy

Principles applied by the Authority in its determination of privacy complaints. They

read:

i)    The protection of privacy includes protection against the public disclosure

of private facts where the facts disclosed are highly offensive and

objectionable to a reasonable person of ordinary sensibilities.

ii)    The protection of privacy also protects against the disclosure of some

kinds of public facts. The "public" facts contemplated concern events

(such as criminal behaviour) which have, in effect, become private again,

for example through the passage of time. Nevertheless, the public

disclosure of public facts will have to be highly offensive to a reasonable

person.

While accepting that Mr Gardner's death was shocking, especially for his family and

friends, TV3 did not regard the details - which were in the public domain - as highly

offensive and objectionable. Moreover, principle (ii) was not contravened, it said, as

the recent publication of Ms Oakes' book renewed the legitimate public interest both

in the case, and the relevance of battered woman's syndrome.

Turning to the other matters raised by Mrs Gardner, TV3 said that she and/or other

family members on a number of occasions had appeared on news and current affairs

programmes stating that Mr Gardner had not been abusive to Ms Oakes. It concluded:

It remains for [TV3] to extend its sympathy to you and your family. To lose a

family member under any circumstances is painful, the circumstances of Doug's

death must be particularly harrowing. [TV3] regrets any hurt caused by TV3

broadcasts but believes that, while the reporting of news and current affairs

does, at times, cause hurt, it cannot be censored.

The Referrals to the Authority

Mr Hill responded in detail to TV3 when he referred his complaint to the Authority.

Pointing out that Ms Oakes described 20/20's reporter as a personal friend, he claimed

that the release of the book was planned to coincide with the broadcast complained

about. He considered that this amounted to bias, and indicated that the thrust of the

item was not battered woman's syndrome but, as was evident by the use of

photographs of Mr Gardner, part of Ms Oakes' campaign for parole. He also

continued to allege, on the basis of comments from two of Ms Oakes' children, and

despite TV3's protestations to the contrary, that TV3 had paid Ms Oakes for her

participation in an earlier programme.

Mr Hill persisted in his argument that, apart from the claims of defence counsel, there

was no evidence that Mr Gardner was violent towards Ms Oakes. Rather, and

contrary to the approach taken in the 20/20 item, the picture of Ms Oakes which

emerged from the trial was that of trained nurse who planned her partner's death

through the use of drugs. He wrote:

The argument of self-defence was an afterthought and putting the pills in the

coffee was not a sudden loss of control but deliberate. Oakes administered

drugs to the man over a long period and evidence from witnesses, showed

Oakes was able to fabricate, embellish and lie about the disappearance of Mr

Gardner. Oakes' evidence was a performance of operatic scale and her ability

to remember dates, times and events were mind boggling.

As for the quotations from Justice Hardie Boys, Mr Hill insisted that they had been

taken out of context. The judge, he wrote, had accepted the trial judge's summing up,

and, he added:

Justice Hardie Boys said neither the guilty verdict nor the reality of battered

woman's syndrome were an issue in this case.

Noting that apart from Ms Oakes herself, the defence had called little evidence, Mr

Hill maintained that the programme was biased in giving undue weight to the defence

case. Acknowledging that he had submitted only some of the transcript, he accused

TV3 of selectivity also in the quotations it had used. Mr Hill included some other

comments from Justice Hardie Boys which, he believed, endorsed his perspective on

the role of battered woman's syndrome in the trial.

Mr Hill questioned the justification to describe Ms Ablett-Kerr as an expert on

battered woman's syndrome, and he reiterated his argument that there was minimal

evidence given that Ms Oakes was ever beaten by Mr Gardner.

In response to TV3's comment that Mr Gardner's family had had numerous occasions

to respond on television to the claims from Ms Oakes and her supporters, Mr Hill said

the family had declined to comment at the time of the trial on police advice, and

subsequent coverage involving the family had been small.

Mr Hill concluded by requesting on behalf of the family that TV3 did not use again

the photographs of Mr Gardner, his body or the hole in which he had been buried for

14 months. They were, he said, no longer newsworthy. That material, he said in

conclusion:

Serves to open family wounds again. Remember there are 13 nephews and

nieces, many uncles and aunts, brothers and sisters and a mother, who should be

allowed to get on with their lives without the screening of what the jury found

was a cold calculating murder.

When Mrs Gardner referred her complaint to the Authority, she emphasised the

distress she felt when photographs of her son and the grave site were screened on

television.

TV3's Report to the Authority

In its report to the Authority, TV3 said Mr Hill seemed to be attempting to re-litigate

the entire case. In view of its earlier denial that 20/20 had paid for the Gay Oakes

story, TV3 said that it would regard repetition of the claim as defamatory. It provided

a list of the occasions on which comment from Mr Gardner's family and friends had

been included on TV3 news items. It also said the relationship between its reporter

and Ms Oakes was professional. TV3 concluded:

The Gay Oakes case has become a focal point of the Battered Woman's

Syndrome debate. The lack of understanding of the syndrome within our legal

system was at the centre of Judith Ablett-Kerr's application to the Privy

Council. The issue was current and of public interest. Gay Oakes' book gave

the matter relevancy and added interest.

The Standards Committee can understand Mr Hill's reluctance to accept Doug

Gardner was abusive towards Gay Oakes. However, the Committee does not

believe Mr Hill should attempt to use the Authority and the Codes of

Broadcasting Practice as a brush with which to paint a picture that distorts

reality.

In his final comment to the Authority, Mr Hill repeated the concerns he had raised in

his earlier letters of complaint.

The Authority's Findings

The Authority's task is to determine the complaints about the 20/20 item from the

deceased's mother and step-brother. Considerable information has been provided

from Mr Hill in particular, but it is not the Authority's function to decide the

relevance of battered woman's syndrome to the case against Gay Oakes, or indeed,

the extent to which Mr Gardner used violence against Ms Oakes. Taking into account

the quotations from the judgment of Justice Hardie Boys supplied by both the

complainants and TV3, the Authority accepts that there was evidence given by some

witnesses which justified defence counsel in bringing the battered woman's syndrome

before the Court. The Authority also acknowledges that this defence was rejected at

the trial, and that rejection was not overturned by either the Court of Appeal or the

Privy Council.

Regardless of the extent to which the defence was relevant, the trial of Ms Oakes

raised battered woman's syndrome in the public consciousness. Thus, the Authority

accepts, the publication of Ms Oakes' book was an appropriate occasion for the issue

to be explored in a television current affairs item. Ms Oakes and the syndrome are

linked and, in the Authority's opinion, an item which explored the syndrome could

trace the public knowledge of it to the trial. TV3 maintained that battered woman's

syndrome was the focus, while the complainants argued that Ms Oakes and the trial

were the item's themes.

By noting that the two are closely linked, the Authority does not consider that it is

necessary to rule on this dispute as to what was precisely the item's principal focus.

The Authority notes that the release of the book seems to have been the catalyst for

the story. Because of this linkage, the Authority accepts the item was entitled to refer

to the relationship between Mr Gardner and Ms Oakes.

At the same time, the Authority understands the distress felt by Mr Gardner's family.

Ms Oakes raised battered woman's syndrome as a defence. It was unsuccessful. The

jury found her guilty of murder. As the Authority recorded above, it does not intend

to review the evidence given at the trial to speculate as to whether the defence was

nearly successful, or whether it was put forward as a tactic by a calculating killer.

Nevertheless, the ongoing relationship in the public consciousness between Ms Oakes

and the defence involves some opprobrium being placed on Mr Gardner - whether

justified or not. As this reflects negatively on Mr Gardner, the Authority believes that

any in-depth examination of the trial, as occurred in this programme, must present the

material advanced at the trial in a way which carefully summarises the evidence. This

is of particular importance if photographs of Mr Gardner, and the graphic pictures of

the gravesite in the garden, are included.

Having dealt with these background matters and detailed the areas it does not intend

to determine, and the approach it intends to adopt, the Authority focuses on the

matters raised in the complaints.

There are four specific matters which form the substance of these complaints. They

are:

            *    The item was inaccurate as it accepted, contrary to the evidence presented

                 at the trial, that Mr Gardner had been violent to Mr Oakes.

            *    The item was not balanced in that it did not deal sensitively with the

                 deceased or his family.

            *    The item intruded on the grief felt by the Gardner family. The pictures of

                 Mr Gardner and the shots of the grave were particular examples of such

                  intrusion.

            *    The broadcast breached the family's privacy.

The Authority reaches the following decisions on each of these points:

            *    The programme was not inaccurate, as evidence of violence was given at

                 the trial.

            *    The balance standard does not cover insensitivity.

            *    The standard relating to intrusion into grief does not apply as the item did

                 not include footage of the family. Furthermore, the material shown was a

                 matter of public record.

            *    As the family was not included in the item, the broadcast did not breach

                 its privacy.

In addition, to the above specific points, the Authority interprets Mr Hill's complaint

to allege an overall imbalance in the broadcast. He suggests that 20/20's

interpretation of the case largely overlooked the matters raised by the prosecution at

Ms Oakes' trial.

In response, TV3 denied that the item approached the case with a predetermined view

of the trial. The broadcast, TV3 continued, dealt with battered woman's syndrome.

The publication of Ms Oakes' book on the topic, it said, involved revisiting aspects of

the trial to give the book an appropriate setting. Further, the references to the trial

necessitated traversing the failed defence argument.

The Authority acknowledges that battered woman's syndrome was a main focus of

the broadcast, and that there were references to the trial in order to illustrate its

possible applicability. In these circumstances, the Authority accepts that it is not

necessary to cover all the arguments raised by both sides. The material screened was

advanced on the basis that the syndrome had been raised as a defence, and it was clear

that the defence had been unsuccessful.

Taking these matters into account, and while understanding the distress which the

portrayal of the material causes to Mr Gardner's family, the Authority nonetheless

accepts that the use of footage relating to the crime and the trial was justified.

Further, it accepts that its future use can continue to be justified, while the case

remains one of considerable public interest.

Despite this determination on the substance of the complaints, there is some specific

footage about which the Authority expresses some concern. This footage involved the

reconstruction of the manner in which Ms Oakes was said to have mixed the

prescription pills into Mr Gardner's cup of coffee on the night he died. As depicted in

the programme, this was a spur-of-the-moment decision made under severe stress,

whereas, as Mr Hill argued, the prosecution case, which proved successful, was that

the act was premeditated.

The Authority does not object to the use of some degree of dramatic licence in

depicting a crime in an item where the reconstruction of a crime is relevant to the

broadcast. However, it will become concerned if the reconstruction is depicted in

such a way to invite a conclusion which is at variance with the facts.
  

Here, the depiction of the murder appears to be largely based on Ms Oakes'

recollection of events. The suggested spontaneity of her actions, and her lack of the

necessary animus or intent, was not accepted by the jury, in that it convicted her of

murder. Furthermore, it was stated in the programme that Ms Oakes' appeals to the

Court of Appeal and Privy Council were unsuccessful. In the Authority's opinion,

nevertheless, the point that the jury did not accept the Ms Oakes's claim that she had

diminished responsibility for her actions, should have been made clearer.

In view of the number of contentious trials recently, and their subsequent review by

television current affairs programmes, the Authority reminds broadcasters of the

imperative to ensure overall balance. This is of particular relevance when the

approach taken in an item is to focus on the arguments advanced by one party. An

undue amount of dramatic licence, or an excessive focus on one side of a contentious

issue, may run the risk of unfairness and/or partiality which will result in a breach of

standards. In this instance, the sequence referred to fell marginally short of a breach.

On the current complaints, the Authority concludes that the standards were not

contravened by the 20/20 item on battered woman's syndrome broadcast by TV3 on 3

August 1997.

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

Signed for and on behalf of the Authority

Sam Maling
Chairperson
12 February 1998

Appendix

Mr Hill's Complaint to TV3 Network Services Ltd – Undated

Allan Hill of Wellington complained to TV3 Network Services Ltd about the item

"Fighting Back", broadcast by TV3 on 20/20 between 6.30–7.30pm on Sunday 3

August 1997.

While the item referred to the murder of Douglas Gardner, Mr Hill considered that it

in fact promoted the murderer, Gay Oakes, and her book. The victim's family, he

added, were treated insensitively. He recalled that TV3 had been asked on several

occasions not to screen photographs of Mr Gardner, and scenes of the grave, in view

of the emotional wounds inflicted by the murder. However, he wrote, TV3 continued

to advance only Ms Oakes' point of view, despite the evidence of her gambling and

drinking problems. Further, Mr Hill emphasised, she had murdered her partner by

poisoning him.

Mr Hill stated that the court transcripts showed that Ms Oakes committed a cold and

calculated murder and there was no evidence, other than that which she gave, that Mr

Gardner had been violent. Mr Hill noted that he was Mr Gardner's step-brother.

Further Correspondence

In its initial reply (dated 11 August 1997), TV3 said that it did not want to cause

distress, but it had presented the facts as they appeared. In response to one matter

raised by Mr Hill, it stated that TV3 had never paid a fee to Ms Oakes as alleged, and

reported that even the Counsel for the Prosecution had accepted that Douglas Gardner

had been violent to Gay Oakes.

Mr Hill sought the assistance of the Broadcasting Standards Authority at this time and

it was arranged for his undated letter (referred to above) to be dealt with as a formal

complaint alleging some factual inaccuracies and a lack of balance.

Mr Hill also provided part of the transcript of the evidence presented at Ms Oakes'

trial, which he said, disclosed that Ms Oakes' allegations of violence by Mr Gardner

were not supported by the evidence of other witnesses.

TV3's Response to the Formal Complaint – 22 September 1997

Dealing first with the standard G1 aspect, TV3 pointed out that Justice Hardie Boys,

on behalf of the Court of Appeal, had referred to "numerous episodes of violence"

towards Ms Oakes, and witnesses at the trial had told the jury of the violence Ms

Oakes had endured. It considered the transcripts supplied by Mr Hill were incomplete

and, moreover, some of the witnesses were not identified.

Relying on the Court of Appeal's comments, TV3 declined to accept that the accuracy

requirement in standard G1 had been breached.

As for standard G6, TV3 considered that battered woman's syndrome was the issue

addressed in the programme and, further, its relationship to the Gay Oakes' case.

TV3 noted that the lawyer interviewed, Ms Judith Ablett-Kerr QC, had particular

expertise in the area, and that battered woman's syndrome was accepted as a

legitimate defence. It wrote:

The screening of the 20/20 item "Fighting Back" coincided with the

publication of a book written by Gay Oakes titled 'Decline into Darkness'.

The 20/20 item investigated the syndrome in general and as it related to Gay

Oakes. The Committee believes this is a legitimate area of investigation and is

in the public interest.

TV3 added:

The Committee notes friends and family of Mr Gardner have had the

opportunity, on the TV3 Network and on numerous occasions around the time

of the trial, to challenge evidence of Mr Gardner's violence towards Ms Oakes.

TV3 declined to uphold the entire complaint.

Mr Hill's Referral to the Broadcasting Standards Authority – 15 October 1997

Dissatisfied with TV3's response, Mr Hill referred the complaint to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Mr Hill considered that TV3 had "shown complete and utter contempt" for the

Gardner family. He contested TV3's remark that the publication of the book merely

coincided with the 20/20 item, advising that the book was embargoed until the

broadcast, and that 20/20's reporter was described in the book by Ms Oakes as a

"personal friend". He argued:

This proves to me that the programme was a direct book review. Battered

woman's syndrome was only a secondary part of the programme.

A programme dealing with the syndrome, he added, would not have needed to include

a photograph of Mr Gardner or the backyard grave in which he had been buried. He

maintained that most of the item dealt with Ms Oakes and her family, rather than the

syndrome.

Mr Hill also reported that two of Ms Oakes' children had stated to many people that

she, and her daughter, had been paid by TV3 for an exclusive story.

Referring to the Crown Prosecutor's summing up at Ms Oakes' trial, Mr Hill said she

was described as a calculating person whose argument of self-defence was an after-

thought.

As for TV3's reference to the Court of Appeal, Mr Hill said the statement quoted was

taken out of context. He cited extracts from the Court of Appeal's ruling when it was

said that battered woman's syndrome was not the issue. The trial judge's ruling

which resulted in the jury convicting Ms Oakes for murder, he observed, was not

overruled on appeal. Mr Hill acknowledged that he had not supplied a full transcript,

but continued to point out that in this case battered woman's syndrome was not

accepted as a defence.

In regard to TV3's statement that the item was about battered woman's syndrome as it

applied to Ms Oakes, Mr Hill cited the comment by Hardie Boys J in the Court of

Appeal that the syndrome, by itself, was not a justification for the commission of a

crime.

Mr Hill also disputed TV3's contention that Ms Ablett-Kerr was an expert on the field

of battered woman's syndrome. She had only appeared for Ms Oakes in the appeal to

the Privy Council, he wrote. He also pointed out that no other cases involving the

syndrome were referred to in the item. As the Court did not accept the applicability of

the defence in this instance, Mr Hill argued that the evidence did not support the

contention that Mr Gardner had been violent towards Ms Oakes. Further, he stated,

no witnesses gave evidence that Ms Oakes was ever seen with signs of violence on

her. He wrote:

It was a fabricated story to gain public sympathy in the hope she might get away

with murder, under the guise of battered woman's syndrome.

TV3, Mr Hill stated, had pursued Ms Oakes' side of the story in a biased way in

several programmes. The victim's side had not been advanced and, Mr Hill pleaded

to TV3 to cease using photographs of Mr Gardner, or the hole in which Ms Oakes

buried him for 14 months. Those photographs had no newsworthiness, he said:

But serve to open family wounds again. Remember there are 13 nephews and

nieces, many uncles and aunts, brothers and sisters and a mother, who should be

allowed to get on with their lives without the screening of what the jury found

was a cold calculating murder.

TV3's Report to the Authority – 20 November 1997

TV3 began by questioning the relevance of much of the material advanced by Mr Hill.

Rather than complain about the specifics in the broadcast, it said, Mr Hill seemed to

be producing information in an effort to prove that Douglas Gardner was not violent

to Gay Oakes. While referring to the evidence produced in Court, TV3 said that it

was an issue it did not intend to debate with Mr Hill.

TV3 described the specific allegation that it "paid" for the Ms Oakes' story as untrue.

Repetition of these comments, it warned, would be regarded as defamatory.

For the Authority's information, TV3 supplied the story rundowns of news items on

the Ms Oakes' story. They disclosed that family and friends of Mr Gardner had

commented on a number of occasions. TV3 also maintained that its reporter's

relationship with Ms Oakes was, and always had been, professional. TV3 concluded:

The Gay Oakes' case has become a focal point of the Battered Woman's

Syndrome debate. The lack of understanding of the syndrome within our legal

system was at the centre of Judith Ablett-Kerr's application to the Privy

Council. The issue was current and of public interest. Gay Oakes' book gave

the matter relevancy and added interest.

The Standards Committee can understand Mr Hill's reluctance to accept Doug

Gardner was abusive towards Gay Oakes. However, the Committee does not

believe Mr Hill should attempt to use the Authority and the Codes of

Broadcasting Practice as a brush with which to paint a picture that distorts

reality.

Mr Hill's Final Comment – Received 3 December 1997

Mr Hill began by expressing his opinion that TV3, again, had twisted the facts to

justify its interpretation of the Gay Oakes case. He continued:

I start by referring to my first complaint that there was no reason to screen my

mother's or Dougie's photos on the 20/20 Fighting Back programme, or the

lifting of Dougie's body out of the hole in which Gay Oakes tried to conceal a

horrible crime. This has nothing to do with "the book review" of Gay Oakes'

book.

Mr Hill maintained that TV3 misquoted the evidence. Dr Don McLeod, a Crown

witness who had been Ms Oakes' doctor from July 1992 to September 1993, he said,

had noted physical marks on Ms Oakes on one occasion only, and that had coincided

with the evidence of two others who reported seeing her in a fight in a hotel.

While it might be Ms Oakes' prerogative to describe the 20/20 reporter as a personal

friend, Mr Hill argued that the item was still biased in showing the hole where Mr

Gardner's body had lain for 14 months.

There was no evidence, Mr Hill continued to contend, in support of Ms Oakes' story

that Mr Gardner was violent. The correct picture, Mr Hill said, was that Ms Oakes

was the aggressor and, consequently, TV3's presentation had distorted reality.

Mr Hill concluded:

I once again on behalf of the family and my mother, ask that TV3 be stopped

from screening photos of Dougie, Mum or the hole in which he was hidden.

This serves no purpose at all, except to open wounds in the family again and

again, when we should be able to get on with our own lives, without TV3

continuing to harass us, by showing it over and over.

Appendix ll

Mrs Gardner's Complaint to TV3 Network Services Limited – 8 August 1997

Gladys Gardner of Christchurch complained to TV3 Network Services Ltd that the

20/20 programme Fighting Back broadcast on 3 August 1997 showed pictures of her

son, the place where he was buried and other pictures relating to the circumstances

surrounding his death. She considered the pictures to be inconsiderate to a family

trying to put the tragic event of her son's death behind them.

Mrs Gardner also wished to complain about the manner in which the presenter

summed up the 20/20 programme. She said she found the attitude condescending and

believed her to be stating things that were not proven fact. She advised that at no time

had any member of the Gardner family ever been interviewed by TV3. She stated at

the end of her letter that she believed the privacy of her family had been breached by

the broadcast.

TV3's Response to the Formal Complaint – 8 September 1997

TV3 considered the complaint under the Authority's privacy principles i) and ii).

These have been developed by the Authority as guidelines in the interpretation of

s.4(1)(c) of the Broadcasting Act, which provides that every broadcaster is responsible

for maintaining in its programmes and their presentation, standards which are

consistent with the privacy of the individual.

TV3 said that while the circumstances concerning Mr Gardner's death were shocking

and tragic, particularly for his family, they were public knowledge and were not

offensive and objectionable to a reasonable person of ordinary sensibilities. On the

basis that the publication of Ms Oakes' book and the attempts by her barrister to have

her case reviewed gave the issues legitimate public interest, it declined to uphold the

complaint.

In regard to the other concerns raised in Mrs Gardner's complaint, TV3 pointed out

that no breach of broadcasting standards had been cited. It advised that a separate

response would be made to Mrs Gardner regarding her concerns over the use of

pictures of Mr Gardner and events surrounding his death.

TV3 concluded by stating:

The [Standards] Committee regrets any hurt caused by TV3 broadcasts but

believes that, while the reporting of news and current affairs does, at times,

cause hurt, it cannot be censored.

Other Correspondence: TV3 Response to Mrs Gardner – 11 September 1997

In response to Mrs Gardner's complaint about the use of pictures of her son and the

site where he was buried, TV3 wrote:

I must inform you a full and complete archive is essential to any news

organisation and is there to be used appropriately to inform viewers as and

when that archive material is relevant and is of legitimate public interest.

3 National News and Current Affairs can not accede to requests to delete or

limit archive material in its possession. I can assure you that if and when

images you seek to have restricted are used by TV3, it will be done when there

is a legitimate public interest and with proper consideration.

Mrs Gardner's Referral to the Authority – 16 September 1997

Dissatisfied with TV3's responses, Mrs Gardner referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
  

Mrs Gardner considered that both replies from TV3 were in response to her complaint

against the particular 20/20 programme, and she wished both answers to be

considered by the Authority.

She continued:

I was told that if I wrote and asked for no more pictures of my son Douglas

Gardner and the grave site to be shown on TV my request would be acted

upon. This has not happened and the continual showing of these things is very

distressing, not only to myself but other members of my family especially

Doug's nephews and nieces. How can we ever get over the tragedy if the

pictures are shown all the time.

TV3's Response to the Authority – 30 September 1997

TV3 advised the Authority that it had on numerous occasions broadcast comment

from the Gardner family denying claims of Mr Gardner's violent behaviour towards

Ms Oakes. TV3 enclosed news scripts as evidence of this.

TV3 also cited comments made by Justice Hardie Boys in the judgment of the Court

of Appeal which, it said, confirmed that there was evidence pointing to violence

perpetrated by Mr Gardner.