Child Advocacy Trust and TV3 Network Services Ltd - 1998-080
Members
- S R Maling (Chair)
- J Withers
- L M Loates
- R McLeod
Dated
Complainant
- Child Advocacy Trust
Number
1998-080
Programme
20/20Broadcaster
TV3 Network Services LtdChannel/Station
TV3
Summary
The Christchurch Civic Creche case and the controversial circumstances surrounding
the conviction of Peter Ellis were featured in a 20/20 programme, broadcast on TV3 on
16 November 1997 at 6.30pm. The item reviewed the case and in its context the
credibility of child witnesses.
The Child Advocacy Trust complained to TV3 Network Services Limited, the
broadcaster, that the item was unbalanced and unfair, and that the only participant in
it who presented a significantly different viewpoint had his character assassinated
throughout the programme. The Trust complained that the result of the broadcast
was to create a climate in which it would be harder for children to disclose sexual
abuse for fear of not being believed.
TV3 responded that the programme contained justifiable statements, was not partial
or unfair, and was balanced by the participant referred to. It also submitted a
videotape of a 20/20 programme broadcast in the United States in support of the
programme's stance on the collection and use of evidence of child complainants.
Dissatisfied with the broadcaster's response, the Trust referred its complaint to the
Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons given below the Authority declines to uphold the complaint.
Decision
The members of the Authority have viewed the item complained about and have read
the correspondence (summarised in the Appendix). On this occasion, the Authority
determines the complaint without a formal hearing.
An episode of 20/20 on 16 November 1997 focussed on the Christchurch Civic Creche
Case. It reviewed some concerns which had been raised about it in the community,
particularly the police investigation of the case, and the methods by which the
evidence of child witnesses in the case had been collected.
The Complaint
The Child Advocacy Trust claimed that the episode was biased, unbalanced, and
unfair to the families who had been involved in the case. It complained to TV3 that
the programme had created a climate in which it would be harder for children to
disclose sexual abuse for fear of not being believed. It also claimed that the only
person who appeared in the programme to present a view "significantly different from
the preconceptions of the programme makers", the detective who had led the
investigation, had his character assassinated throughout the broadcast.
The Trust wrote that the impression given in the programme was that the entire police
investigation was handled by one man, Detective Eade, and it denied that had been the
case. It contended that emotive descriptions of the detective used in the programme
were not evidenced by facts. Referring to the detective's admission during the
programme that he had been experiencing stress at the time of the investigation and
that his superiors had been concerned about him, the Trust wrote:
No credence was given to the stress involved in child abuse investigations,
particularly investigations of that magnitude. Being stressed in a high profile
complex case does not equal instability and incompetence. The accusations
that Detective Eade intended to 'get him hell or high water' and that he was on
a 'power and control trip' were not substantiated with evidence. The
comments about Detective Eade's relationships with mothers of child
complainants were not put in their appropriate time frame. While the ethics of
such relationships occurring at all are open to question, the fact that these
relationships occurred after the trial is significant in relation to the
professionalism of the investigation and the trial in question.
The complainant criticised the programme's perspective on the methods by which the
evidence of child witnesses of alleged sexual abuse was obtained in the case. It wrote:
The programme gave the persistent impression that the professionals involved
drove the children to make up experiences of sexual abuse and drove the parents
to believe them. In so doing, the programme attempted to undermine children as
credible witnesses, a myth that research has long since dispelled.
The Trust criticised what it called the one-sided nature of the programme and its
failure to introduce discussion about the plausibility of paedophiles, after it had
screened Peter Ellis's statements of innocence. It also noted that the detective's
explanations during the programme of the reasons why children recant after making
allegations of sexual abuse were exploited in later statements made by the
programme's presenter, appearing alone. The dynamics of child sexual abuse – the
ways in which it was kept secret, and the processes of disclosure – were irresponsibly
ignored, the Trust wrote, and that fitted with what it called the preconceptions of the
programme.
The complainant also raised a number of specific questions of the broadcaster relating
to any past or future action which the broadcaster intended to undertake to redress the
imbalance which, it alleged, had occurred in the programme's presentation of child
sexual abuse and its effects on the families of the alleged victims.
In conclusion, the Trust wrote:
...the media is a powerful medium and needs to be used with care and due regard
to public well being. The implications of the issues, so irresponsibly handled
within this programme, go well beyond the Ellis case. They are about the
credibility of children's statements about their experiences and the credibility of
the investigation and criminal justice around child sexual abuse.
TV3's Response to the Complainant
TV3 assessed the complaint under standards G4 and G6 of the Television Code of
Broadcasting Practice. These require broadcasters:
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.
Dealing first with standard G4, TV3 stated that the detective had been given the
opportunity to respond to any allegations made against him. It contended that any
script lines concerning him could be justified. It also contended that the programme
made it clear that he was not the only officer involved in the investigation, and also
made it clear when his relationships with women associated with the case had
occurred.
Next, in dealing with standard G6, TV3 claimed that balance had been supplied to the
programme by the programme's interview with the detective. It denied that there was
any lack of impartiality or fairness in the remainder of the programme "as it deals with
fact as opposed to opinion".
The Referral to the Authority
In referring the complaint to the Authority, the Trust disagreed that the detective's
opportunity to respond to the allegations made against him was just or fair. It
asserted that some of the allegations made in the programme required answers that
involved wider and more complex issues than were implied by the questions asked,
and some involved information outside the knowledge of either the detective or the
programme-makers. Answers made by the detective to the programme's presenter,
the complainant wrote, were later followed by statements by the presenter, when
appearing alone, which were intended to discredit his answers. Throughout the
programme, the Trust claimed, there was a deliberate attempt to question the
detective's mental stability, investigative competence, and personal character.
Equally, the Trust challenged the broadcaster's claim that the programme had shown
balance, impartiality and fairness. It claimed that the programme had dealt
inappropriately with "associated facts", which included the ways in which children
reacted to and recalled abusive experiences, the knowledge that recantation was a
common part of the sexual abuse process, that delays such as had occurred in this case
were a routine part of such trials, and, finally, that there was well documented
evidence of children's ability to recall traumatic experiences.
TV3's Report to the Authority
In its report to the Authority, TV3 stated that it had carefully reviewed the
programme, and had been unable to find complex questions or deficient responses
which the detective involved had been unable to answer. It noted that the detective
had himself stated that he was the person who had dealt with all of the major parties
in the case. Therefore, the broadcaster alleged, it was incomprehensible that he would
not have been able to respond to any questions put to him about it.
TV3 denied that the presenter had aimed to discredit the detective in the programme,
and affirmed that the reporter's statements were accurate and justifiable. It also
asserted that the questioning of the detective's mental stability, competence, and
personal character in the programme was a matter of legitimate public interest.
Referring to the complaint about the way children react to and recall their abusive
experiences, TV3 stressed that the programme "relied entirely on the facts relating to
how the child complainants were interviewed about the allegations against Peter Ellis
and others". It emphasised that the programme was concerned with the investigation
of Ellis, and others; it was not a general treatise on how children revealed evidence of
abusive experiences.
Dealing with the programme's references to recantations made by some child
witnesses in the case, TV3 quoted comments made by the detective in the programme
which it said was evidence that he was informed on the matters put to him by the
interviewer, and was evidence that the programme acknowledged that recantations
were not necessarily to be taken at face value.
Responding to the Trust's complaint about the programme's comment on the time
lapse from investigation to trial, TV3 noted that the comment "simply stated" the
length of time taken by the process, and that there was nothing pejorative about so
doing.
The broadcaster stated that "all the information relating to the evidence and acquiring
of evidence from child complainants" which had been used in the programme could be
justified. In support of its position, TV3 provided a videotape of a programme on
this subject which had been broadcast on 20/20 in the United States. A copy of that
videotape was then made available to the Trust.
The Trust's Final Comment
The Trust emphasised that the portrayal of the detective in the programme was of
particular importance, in its view, as he was the only person who had personal
knowledge of the police investigation of the case, and was the only person whose
perspective was significantly different from the programme-maker's views. It claimed
that attacks on the detective's personal and professional integrity made by the
programme had undermined his position. The attacks, the Trust stressed, were of
major concern. They were not mitigated by the opportunity given to him to respond
to the allegations, and they were not balanced by the programme's interview with him.
In particular, the Trust referred to an allegation of sexual harassment made by the
mother of a child complainant against the detective, and to his relationship with two
other women involved in the case. These matters, once raised in the programme, could
not be answered satisfactorily by the detective, the Trust wrote. It also referred to
the inference of possible knowledge or bias of two jury members which had been
raised in the programme. The Trust commented on the legal opinion provided in the
programme by the Queen's Counsel who had acted for Ellis, and said the programme
was unbalanced in failing to provide another legal view.
The Trust complained that statements made by the detective about the stress,
personal demands and consequences of the case for him were then used by the
presenter to imply that he had been unstable, and should not have conducted the
inquiry. There was, the Trust wrote, no evidence to support that view. It argued that
stress arising in any professional involved in the investigation of child abuse
investigations did not prove that they were incompetent or unstable.
The Trust also argued that the programme discredited the detective's competence as a
police investigator. It illustrated that perspective by referring to the way the
programme used footage of Ellis, to the programme's failure to present any of the
parents of children whose evidence had been used in the case, and to its attempts to
undermine the credibility of the children who had been witnesses. As to the latter, the
Trust wrote:
...the verbal evidence of a victim is of paramount importance. The credibility of
children's statements is judged by many parameters and is never taken as
suggested without scrutiny. There was corroborative and physical evidence
obtained in this trial although children outside of an immediate complaint of
abuse often have no definitive physical or forensic findings.
The Trust emphasised the media's need to deal in a balanced way with controversial
matters, such as the sexual abuse of children, which it said was poorly understood by
the public. Here, the Trust wrote, the programme presented as inappropriate the
manner in which the evidence of the child witnesses had been obtained. It considered
it gave the impression that the professionals involved drove the children to make up
their experiences, and drove their parents to believe them. That view, the Trust
wrote, also coloured the reports on the parents' meetings, and their motivations for
being involved. It also contended that the programme exploited some of the issues
surrounding the way in which pre-school children expressed significant harmful
experiences, and in doing so put significant questions in the viewer's mind.
Despite the detective's attempts in the programme to explain in lay terms what was
involved in the process of recantation, and despite the Court of Appeal's acceptance
of the process in a particular instance in the case, the programme deliberately
misconceived the process, the Trust claimed.
The Trust again asserted that the programme's reference to the time taken by the
court processes in the case was not presented impartially.
With respect to the videotape of the American programme described earlier, the Trust
dismissed both the professional experience and the methods of the researcher who was
featured. In addition, it claimed, that video gave very inaccurate information about the
sexual abuse of children in day care centres, which had been recognised in the 1980s.
In conclusion, the Trust summarised the programme as having:
...used the unsubstantiated opinions of Ellis's supporters, allegations
questioning the role of Det. Eade in the investigation, and biased statements
about the case as a whole, to create a climate of disbelief over the justice of the
conviction of Ellis.
Further Correspondence
In a letter dated 20 April 1998, the Trust responded to the Authority's request for
amplification of its claim that there had been corroborative and physical evidence in
the Ellis trial, beyond the children's statements. The Trust wrote that the
corroborative evidence sought was not relevant to its complaint. The substance of its
complaint to the Authority, the Trust wrote, was the biased portrayal of the sexual
abuse investigation and the criminal justice system, and the damage that such bias
could cause sexual abuse complainants and their families.
The Authority, in a further letter to the Trust dated 28 April 1998, wrote that it
understood the complainant to have stated that there was corroborative and physical
evidence at the trial to support the Ellis conviction, and which was not referred to in
the 20/20 programme. If that was the complainant's assertion, the Authority
continued, it sought the Trust's comments, and some amplification of the
corroborative evidence which was available at the trial, as that would be relevant to the
allegations of standards breaches made by the Trust.
The Child Advocacy Trust wrote in a letter dated 11 May 1998 that the nature of
corroborative evidence in cases of alleged child sexual abuse was a complex matter. It
advised that it had accessed the transcript of the judgment of the Court of Appeal in
the Ellis case. The Trust initially referred to the judges' appraisal of the interviews of
the child witnesses, and the judges' comments that there was no solid basis to claims
that the children's evidence was contaminated by interviewing techniques, parental
hysteria or the like.
The complainant also referred to one of the charges on which Ellis was convicted and
the evidence available on that charge, as one example of corroborative evidence.
Noting that the judgment referred to other corroborative evidence, the Trust wrote
that a lack of forensic medical evidence was common in cases of sexual abuse and
could not be looked at in isolation.
In dealing with the recantation, or retraction of evidence, by one child witness, the
Trust also quoted extensively from the judgment, which referred to an independent
expert's doubt about the validity of the particular recantation. The programme-
makers, the complainant alleged, had used the retraction to support a view that Ellis
was innocent, and in doing so failed to mention the circumstances of the retraction.
The solicitors for TV3 in a letter to the Authority dated 2 June 1998 asserted that the
extract from the Court of Appeal judgment on which the Trust relied to assist with
the Authority's questions was "not in fact corroboration at all".
The Authority's Findings
In assessing this complaint, the Authority bears in mind that the field of investigation
into allegations of child sexual abuse is one in which even experts may hold widely
differing opinions. It is also one which attracts considerable public interest, as the
Ellis case has done. It is not the Authority's task to assess the relative merits of
conflicting schools of thought on issues raised in this programme, such as disclosure,
recantation, and the overall reliability of child witnesses. Rather, it is required to
evaluate the broadcast when it questioned the means by which a guilty verdict was
secured in the Ellis case, and whether it did so within the parameters of broadcasting
standards. In so doing, it appreciates that the programme was the result of robust
investigative journalism which included additional background to the Ellis case.
However, the Authority is mindful that investigative journalism is always subject to
the requirement for fairness and balance, and that those issues are sharply focussed on
in the context of this complaint.
The complainant asserts that the programme was made with a preconceived bias, and
advances a number of arguments in support of that view. The Authority considers
that these arguments fall within several broad areas of complaint, involving the Trust's
allegations of unfairness, lack of balance, and ensuing bias.
In essence, the Authority perceives these broad areas of complaint more specifically
to be:
- that the programme created a climate in which it would be harder for children to
disclose sexual abuse for fear of not being believed,
- that it undermined the children as credible witnesses by giving the persistent
impression that the professionals involved drove the children to make up their
experiences,
- that the programme was unfair to the police by dealing unfairly with their
investigation and in particular was unfair to Detective Eade in a number of
respects,
- that the programme lacked balance, and
- that the programme was biased.
Accordingly, the Authority deals with the complaint under standards G4 and G6.
There are a number of aspects to the claim of lack of balance, which will be dealt with
collectively later in this decision. The Authority begins its determination with the
broad areas of complaint it has itemised above.
The first issue, it considers, is whether the programme can properly be regarded as
having created a climate which will make it more difficult for children to make
disclosure for fear of not being believed. If so, the question is whether that would
contravene the standards. The Authority is not persuaded on either proposition. The
focus of the programme was, it considers, the investigation and conviction of Peter
Ellis. Because sexual abuse charges were made, that inevitably raised issues related to
witness testimony from children.
In the Authority's view, given that the psychological methodology at the time
favoured the belief that a child's testimony was unreservedly truthful, such witness
testimony, when considered several years later in a less stringent climate could be
expected to be subject to a degree of re-evaluation and comment. That this occurred in
this programme was, it considers, unsurprising. However, nothing in the
broadcaster's treatment of the subject leads the Authority to conclude that the
broadcast would have the effect of making it more difficult for children to disclose
sexual abuse for fear of not being believed. Furthermore, it notes the statement in the
introduction to the programme confirming that methods of questioning of child
witnesses have changed in recent times. Consequently, the Authority concludes on
this aspect of the complaint that the programme was neither unfair in contravention of
standard G4 nor unbalanced in contravention of standard G6.
Next the Authority deals with the complaint that the programme undermined the
children as credible witnesses, an allegation which the complainant contended also
caused a degree of unfairness to the families concerned. This aspect of the complaint
raises issues of fairness under standard G4. However, given that the general approach
of the broadcaster was to cast doubt on the safety of the conviction, and that it
deliberately took a particular perspective, the Authority deals with the matter under
standard G6, as it considers the more appropriate question here is one of balance. It
does not uphold a breach of G6 on this aspect, since it considers that the focus of the
programme's thesis was not the credibility of the children so much as the means by
which professionals involved gathered their statements.
The Authority notes that the programme raised the issue of financial compensation
sought and paid to the families involved, and that this may have contributed to the
Trust's view that they were thereby unfairly dealt with. It considers, however, that
while the information about compensation may have raised the implicit question of
whether the prospect of financial gain could have influenced some parents, that was
not emphasised, nor was it advanced as an inevitable conclusion. Thus it finds that
this element of the programme did not breach G4.
The second major area of complaint, concerning the programme's alleged unfairness in
dealing with the police investigation and, in particular, the treatment of Detective
Eade, is now considered under standard G4.
The detective featured prominently throughout the item, and the Authority notes it
was largely through him that the programme's issues were raised and focussed. In the
Authority's view, the detective presented his information cogently and articulately.
He was familiar with the matters raised, and clear in his responses to the presenter's
questions. It appeared to the Authority that he clearly understood the nature of the
issues raised with him.
The Authority has considered carefully those parts of the programme dealing with the
stress the detective had experienced while working as an investigator on this case, and
the subsequent relationships he had with women involved in the case, following the
trial. He talked openly, it notes, about the stress he had experienced, but refused to
discuss the relationships which had been referred to. While the Trust alleges that the
detective could not satisfactorily answer questions about these personal relationships,
the Authority considers it was not unfair to put such questions to him, as a person
subject to a degree of public accountability, to assist in dealing with issues raised in
the programme.
The Trust argued that there was no evidence to support a view that Mr Eade had been
unstable and should not have conducted the inquiry. The Authority does not consider
that either of these propositions was logically inferred from the admission willingly
made by Mr Eade, that he had suffered from stress. It does not consider that his
competence as an investigator was thereby discredited. However, the stress he
described might have served to illustrate a state of mind which the programme
advanced as being shared by many in this field of investigation at that time, and in
particular in relation to the Ellis case, because of beliefs current at that time. The
Authority finds no breach of standards in this regard.
The wider issue is whether there was an overall unfairness to the police in terms of the
impression created about how the investigation was conducted. The complainant
suggested that the overall impression was that the investigation was essentially left in
the hands of one man, and that this resulted in its being unfair to the police. The
Authority does not draw that conclusion from the programme, and it takes the view
that the general viewer would not have done so either. Mr Eade appeared to be a
competent and confident spokesman who, because of the extent of his involvement in
the inquiry, could reasonably have been expected to carry the burden of any
explanation for the police. The Authority is not persuaded that there has been any
breach of standard G4 or G6 in this regard.
The next aspect of the complaint is that the programme lacked balance because it
failed to deal appropriately with the dynamics of the disclosure process, and that the
difficult issues which the disclosure process gave rise to were not appropriate
questions to put to the detective because they were outside his area of expertise.
Further, the Trust contended:
The programme gave the persistent impression that the professionals involved
drove the children to make up the experiences of sexual abuse and drove the
parents to believe them.
The Authority considers that the programme attempted to explore the ramifications of
the disclosure process, both as it was seen at the time of the Ellis investigation, and as
critics now describe it. The programme made it clear that the process was
problematic, and remains so. The Authority considers that it was legitimate for the
professionals' methodology at the time to be subject to scrutiny as it was the crucial
means by which Mr Ellis's conviction was secured.
Whether or not Mr Eade was competent to comment on this specialised area of
inquiry, the Authority is of the view that, as the leading police investigator, he could
be expected to have sufficient expertise to deal with the subject within the general
interest parameters of a current affairs documentary. Consequently it finds no breach
of either G4 or G6 as a result of his involvement in the programme as a spokesman for
the professionals involved in the children's disclosures.
The Authority considers that the programme could have given the impression that the
professionals concerned had acted in a way which might have led the children to give
unreliable testimony. However, there was a clear statement in the programme's
introduction that this trial was held amid a climate wherein children's testimony in
sexual abuse cases was paramount, unquestioned and not required to be corroborated.
That climate also saw children as needing active encouragement if they were to
disclose fully. The Authority understands from the programme and from the
subsequent correspondence that there is still disagreement among professionals over
whether such encouragement is desirable.
It notes, in passing, that the Trust and the broadcaster differ over the reliability of
research cited by the broadcaster in defence of the programme's line of argument. The
Authority does not consider it is competent to judge the merits of this argument, nor
does it consider it necessary to do so to consider this complaint.
It finds no breach of standard G6 on these aspects of the complaint.
Finally, the Trust claimed that the programme was biased because anecdotal evidence
wrongly invited a conclusion about connections between the prosecutor and the jury
foreman. Further, it claimed, the relationship between a jury member and a person
who had a direct interest in the prosecution case wrongly invited the conclusion, from
the anecdotal evidence, that the trial process was not impartial. That was further
exacerbated, the Trust wrote, by other comments about delays in the matter coming
before the court.
The Authority does not accept that these elements of the programme demonstrated
bias. Rather it considers they were included to advance aspects of the means by
which a possibly unsafe verdict had been arrived at, in the view of the programme
makers. As such, it considers they raised questions for the viewer, rather than
advancing a predetermined viewpoint.
In conclusion, the Authority observes in general terms that it believes the Ellis case to
be unique in the amount of interest and publicity accorded to it over the past eight
years. In an historical context, it appreciates that the Crown's case has been
compelling enough to prevail to date through every legal avenue available to the
defence. The Authority finds that in general terms this context is likely to be known
to the general viewer, and particularly likely to be known to viewers sufficiently
interested to watch this programme. It is satisfied that any possible imbalance would
be countered in this case by the profile which it has developed in the wider
community.
The Authority therefore concludes that overall, and taking into account the several
separate points raised by the Trust, the programme did not lack balance but rather to
some extent helped to provide a wider and thus more balanced perspective to the
various issues which this case has given rise to.
For the reasons set forth above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
Sam Maling
Chairperson
23 July 1998
Appendix
Child Advocacy Trust's Complaint to TV3 Network Services Limited – 27 November 1997
Child Advocacy Trust of Auckland complained to TV3 Network Services Limited
about a 20/20 programme, entitled "The Case in Question", shown on 16 November
1997 beginning at 6.30pm. The programme raised some of the concerns which had
been aired in the community about the Christchurch Civic Creche Case and the
evidence which had been offered in the case. It concentrated on the evidence given by
the child complainants of sexual abuse, the methods by which their evidence was
obtained, and the police investigation of the case.
The broadcaster, the Trust wrote, failed to maintain standards consistent with the
Television Codes of Broadcasting Practice. It claimed that the item was biased, unfair
to the families involved, and unbalanced. The Trust also contended that the effect of
the programme was to create a climate in which it would be harder for children to
disclose sexual abuse for fear of not being believed.
The Trust claimed that the only point of view which had been presented during the
programme which was "significantly different from the preconceptions of the
programme makers" had his character assassinated throughout the item. It emphasised
that the programme failed to refer to the distress of the children who went to court, to
that of their families, and to the damage done to them.
The complainant contended that the programme gave the impression that the entire
police investigation was handled by one man. The Trust wrote:
This was not the case. Lines like 'fighting for his own mental stability at the
time' and 'past signs of an obsessive personality' were not backed up with
facts. No credence was given to the stress involved in child abuse
investigations, particularly investigations of that magnitude. Being stressed in a
high profile complex case does not equal instability and incompetence. The
accusations that Detective Eade intended to 'get him hell or high water' and
that he was on a 'power and control trip' were not substantiated with
evidence. The comments about Detective Eade's relationships with mothers of
child complainants were not put in their appropriate time frame. While the
ethics of such relationships occurring at all are open to question, the fact that
these relationships occurred after the trial is significant in relation to the
professionalism of the investigation and the trial in question.
Contending that the programme gave the persistent impression that the professionals
involved drove the children to make up experiences of sexual abuse and drove the
parents to believe them, the Trust stressed that the effect was to undermine children
as credible witnesses. It commented critically on the programme's failure to discuss
"the plausibility of paedophiles" after the programme had referred to the accused's
statements of innocence. Further, the Trust criticised the programme's failure to
consider the "dynamics of child sexual abuse (the ways that it is kept secret and the
process of disclosure)" and claimed this was consistent with the "preconceptions of
the programme".
Finally, the complainant wrote:
...the media is a powerful medium and needs to be used with care and due
regard to public well being. The implications of the issues, so irresponsibly
handled within this programme, go well beyond the Ellis case. They are about
the credibility of children's statements about their experiences and the
credibility of the investigation and criminal justice around child sexual abuse.
Sensationalism and trial-by-media may make 'great ratings' but they damage
our children's safety.
TV3's Response to the Formal Complaint – 22 December 1997
TV3 considered the complaints in the context of standards G4 and G6 of the
Television Code of Broadcasting Practice.
With respect to standard G4, TV3 responded by noting that the investigator referred
to in the programme was given the opportunity to respond to any allegations made
against him. Equally, it claimed, any script lines involving him could be justified. That
he was not the only police officer involved in the investigation was made clear in the
programme, the broadcaster noted, and the programme also made it clear when his
relationships, referred to in the programme, occurred.
TV3 stressed that any comments made in the programme concerning the complainants
in the case, and their families, were accurate and justifiable.
In response to the Trust's claim that the programme breached standard G6, TV3
noted that the programme's concern was with the investigation, trial and conviction of
Peter Ellis. The broadcaster contended that the interview with the investigating police
officer supplied balance. It denied that the remainder of the programme lacked
impartiality or fairness as, it claimed, it dealt with fact as opposed to opinion.
Child Advocacy Trust's Referral to the Broadcasting Standards Authority – 20
January 1998
Dissatisfied with TV3's response to its complaint, the Trust referred it to the
Authority under s.8(1)(a) of the Broadcasting Act 1989.
The Trust denied the broadcaster's assertion that the police investigator was given a
just and fair opportunity to respond to the allegations made against him in the 20/20
programme. It wrote:
1) Some allegations involved questions that placed him in a position where an
answer involved far wider and more complex issues than those implied in the
question, and some of these lay outside of any facts or legal decisions available
to either [the detective or the programme maker].
2) Many of his answers were followed by statements made later by the
presenter appearing alone which aimed to discredit what he had said.
3) The programme deliberately sought to bring into question [the officer's]
mental stability, competence as a police investigator, and personal character
throughout.
The Trust also denied that the programme showed balance, impartiality and fairness.
It claimed that the programme dealt inappropriately with some associated facts.
Those facts included the ways children, particularly very young children, reacted to
and recalled abusive experiences, the knowledge that recantation was a common part
of the sexual abuse process, that court delays such as occurred in the case were a
routine part of the court process, and that there was well documented evidence of the
ability of children of all ages to accurately recall emotionally traumatic experiences.
TV3's Response to the Authority – 19 February 1998
Responding to the complainant's criticisms of its presentation of the "alleged overly
complex questions or deficient responses" from the investigating police officer, TV3
stated that it had carefully reviewed the item and had failed to find anything fitting the
complaint. It noted that the officer himself stated in the programme that he dealt with
the parents, children, doctors, interviewers and psychologists in the case; therefore,
TV3 responded, it was difficult to comprehend how he would not be able to respond
to questions put to him about the case.
The broadcaster also reported being unable to find any inaccurate or unjustifiable
statements, or instances where the presenter had aimed to discredit the police officer,
in the programme.
In dealing with the programme's emphasis on the investigating officer's mental
stability, competence and personal character, TV3 observed that these were matters of
legitimate public interest . It further noted that the officer acknowledged himself that
his superiors were concerned about the stress he was suffering.
Dealing with the complaint about the interviews of child witnesses, the broadcaster
contended that all the statements and comments in the programme were patently
justifiable. It wrote that the programme:
...was concerned with the investigation of Peter Ellis and others. It was not and
never purported to be a treatise on how children may or may not reveal evidence
of abusive experiences.
Responding to the complaint that the police officer was placed in a position where his
answers involved complex issues and sometimes lay outside facts available to him,
TV3 pointed out that the officer made it very clear by his comments that he was
informed on the matters put to him by the interviewers.
The broadcaster noted that the programme simply stated the length of time that the
investigation and trial had taken and that there was nothing pejorative in its statements
about the lengthy nature of the case.
Referring to the Trust's reference to evidence that children were able to be accurate in
their recall of traumatic experiences, the broadcaster emphasised that its information
relating to the evidence, and the acquiring of evidence, from child complainants could
be justified.
TV3 provided the Authority with a copy of a tape of another 20/20 programme
broadcast in the United States, dealing with the credibility of child witnesses in cases
involving alleged abuse, and stated that it would be relying on the information revealed
in the programme. A copy of the tape was then provided to the complainant.
The Trust's Final Comment – 1 March 1998
The complainant denied that TV3 had dealt justly and fairly with the detective in the
programme. It stated that his position had been undermined by direct attacks in the
programme on his personal and professional credibility. These attacks were of
concern, the complainant wrote, and were not balanced because he was interviewed in
the programme or because he was given the opportunity to respond to the allegations
which had been made against him. The Trust wrote that the concern, that arose from
the attacks on the detective's credibility, was that the portrayal of him:
...was of particular importance as he was the only person who had personal
knowledge of the police investigation into the case and was the only person in
the programme whose information was significantly different from the views of
the makers.
The Trust provided three specific examples from the programme which, it claimed,
illustrated the impossibility of the detective, as the only person in the programme
presenting a different view, being able to answer satisfactorily allegations made during
the programme. Two of the examples related to the detective's personal conduct. The
third example was a reference to the questioning in the programme of the jury
selection and the programme's use, in that reference, of the views of a Queens Counsel
who had later acted for the accused in the Civic Creche Case. In regard to that
example, the Trust alleged that the programme failed to seek another legal view and
should also have provided some evidence or knowledge or legal standards and Justice
Department policies.
Referring to answers given by the detective in answer to questions about the stress,
personal demands and the consequences of the case for him, the Trust claimed that the
presenter in the programme programme, when appearing alone, used those answers to
imply that the detective was unstable and should not have conducted the
investigation. In using specific examples of statements made by the presenter, the
Trust emphasised that:
There was no evidence given to support this view of Det Eade and no credence
given to the stress involved in the investigation of child abuse allegations,
particularly of this magnitude and profile. Such stress does not prove that the
professional affected is incompetent or unstable.
The complainant elaborated upon its complaint that the programme also deliberately
questioned the detective's competence as a police investigator. It provided examples
of the programme's presentation of the criminal case as having nothing to do with the
sexual abuse of children, but to do with the people who decided that the sexual abuse
had happened. That presentation of the case, the Trust claimed, was by way of the
opinions of Peter Ellis, the person convicted, and of parents who held similar
opinions. There were no parents included whose children had been part of the two
trials which had occurred.
In the programme's further questioning of the policeman's competence, the Trust
wrote, it portrayed him as having believed the evidence of the child witnesses of
sexual abuse, when the very credibility of those children as witnesses was undermined
by the programme. The programme had referred to child sexual abuse cases in other
countries where questions had been raised about the veracity of evidence given by
children. In the programme's reference to "medical, forensic or corroborative evidence"
not being required, the Trust wrote:
...the verbal evidence of a victim is of paramount importance. The credibility of
children's statements is judged by many parameters and is never taken as
suggested without scrutiny. There was corroborative and physical evidence
obtained in this trial although children examined outside of an immediate
complaint of abuse often have no definitive physical or forensic finds.
In illustrating its complaint that the programme failed to display balance, impartiality
and fairness in dealing with the controversial question of the alleged sexual abuse of
children, the complainant dealt first with the programme's approach to the manner in
which evidence was obtained from the child witnesses. It referred to the:
...persistent impression that the professionals involved drove the children to
make up experiences and their parents to believe them
The Trust wrote that the view that the professionals were fuelling the investigation
was also used to colour the portrayal of the early meetings of the parents of children
allegedly involved, and the allegation that access to Accident Compensation
Commission funding might be available for the "victims".
The Trust also referred to the differences between pre-school and older children which
necessitated different methods being used in the obtaining of evidence from young
children in cases such as this. Those differences necessitated the very methods which
were criticised in the programme, the complainant alleged.
Criticising the broadcaster's use of information about the number of child witnesses
who had apparently recanted from their earlier statements, the complainant stated that
recantation was not uncommon, there were many reasons for it, it was never taken at
face value and the complexities of it had been accepted by the Court of Appeal.
Despite this knowledge, the Trust stressed, the broadcaster deliberately misconstrued
the process of recantation in its allegations in the programme.
In asserting a lack of impartiality in the programme, the Trust relied in part on the
broadcaster's comments on the lengthy nature of the case, and its assumption that
"justice delayed is justice denied". That, the complainant wrote, ignored the lengthy
investigation often required in a sexual abuse case involving a child. Here, the 18-
month period which elapsed from the investigation to the conviction, given the
complexities of the case, could not be seen as reflecting on the competence of the
investigators. The Trust also denied that the exclusion of many potential child
witnesses reflected on the investigator's competence, as had been implied in the
programme.
In response to TV3's reliance on a video of a 20/20 programme, broadcast in the
United States, which reported on American concerns about the collection and use of
evidence of child witnesses in cases alleging sexual abuse, the complainant wrote:
...the video presented one side of the large body of evidence into the way
children respond to adult questioning and the way any traumatic events are
recalled. SC [the researcher featured in the American video] has no experience of
working with sexually abused or children traumatised in other ways in real life.
The methods he is known to use in repeated questioning of young children is
also something that has no comparison to the accepted methods of interviewing
children by the statutory agencies in this country now or at the time of the
Christchurch Creche case.
The video also gave very inaccurate information about the sexual abuse of
children in day care centres which was recognised initially in the 1980's. There
has been a careful evaluation and research into this evidence, and concerns that
have arisen have led to standards being set for improvement in the protection of
children in such facilities.
In conclusion, the Trust wrote that the programme:
...used the unsubstantiated opinions of Ellis's supporters, allegations
questioning the role of Det. Eade in the investigation, and biased statements
about the case as a whole, to create a climate of disbelief over the justice of the
conviction of Ellis. It has contributed to the inaccurate media coverage of the
validity of both the High Court and Appeal Court decisions and has erred from
the principle requirement for fairness and impartiality in reporting such matters
to the public.
Further Correspondence
In response to a letter from the Authority dated 5 March 1998 which indicated that it
was inclined to uphold aspects of the standards complaint and invited submissions on
penalty, TV3 in a letter dated 10 March 1998 and in subsequent letters sought details
of the basis of the Authority's inclination to uphold aspects of the complaint. The
Solicitors for TV3, in a letter dated 9 April 1998, requested the opportunity to appear
before the Authority to argue TV3's case. The Authority responded to that and
several subsequent letters that a decision on the necessity of holding a hearing had not
been made, and that additional information relating to the complaint had been sought
from the complainant.
In a letter dated 16 April 1998, the Authority requested amplification of the
complainant's claim that there was corroborative and physical evidence in the Ellis
trial, beyond the children's statements. The Child Advocacy Trust, in a letter dated
20 April 1998, responded that the corroborative evidence sought by the Authority
was not relevant to its complaint. The substance of its complaint, the Trust wrote,
was the biased portrayal of the sexual abuse investigation and the criminal justice
system and the damage that such bias could cause sexual abuse complainants and their
families. The Authority emphasised, in a letter dated 28 April 1998, that it
understood the complaint to state that there was corroborative evidence at the trial to
support the Ellis conviction which was not referred to in the broadcast. The
Authority stressed that it wished to establish whether that was the Child Advocacy
Trust's assertion and, if so, sought its comments and some amplification of the
corroborative evidence available at the trial.
Replying in a letter dated 11 May 1998, the Child Advocacy Trust wrote that:
The nature of corroborative evidence in cases of alleged child sexual abuse is a
complex matter.
Noting that it had accessed the transcript of the judgment of the Court of Appeal in
the Ellis case, the Trust initially referred to the judges' appraisal of the interviews of
the child witnesses, and their comments that there was no solid basis to claims that
the children's evidence was contaminated by interviewing techniques, parental
hysteria or the like. The Trust also referred to one of the charges on which Ellis was
convicted and the corroborative evidence available on that charge, as one example of
corroborative evidence. Noting that the judgment referred to other corroborative
evidence, the Trust wrote that a lack of forensic medical evidence was common in
cases of sexual abuse and could not be looked at in isolation. Finally, in dealing with
the recantation, or retraction of evidence, by one child witness, the Trust quoted
extensively from the judgment which referred to an independent expert's doubt about
the validity of the particular recantation. The programme-makers, the complainant
alleged, used the retraction to support their view that Ellis was innocent, and failed to
mention the circumstances of the retraction.
The extract from the Court of Appeal judgment on which the Trust relied was not in
fact corroboration at all, the Solicitors for TV3 replied in a letter to the Authority
dated 2 June 1998. They wrote that:
...the evidence referred to was admitted only to refute the defence allegation
that two complainants made up the story... That is an altogether different
thing from corroborative evidence. It is not "one example of corroborative
evidence". There was no corroborative evidence.
TV3's Solicitors claimed that the complainant's concern about the programme was
based on TV3 having failed to sufficiently incorporate any of the Court of Appeal
judgment in the programme. However, they continued, notwithstanding that the
judgment was entirely the basis of the criticism, the Trust had specifically written that
its complaint went well beyond the Ellis case, reflecting on the investigation and
criminal justice processes around child sexual abuse. That, wrote TV3's Solicitors,
was patently not so.