Aburn and Television New Zealand Ltd - 2002-045
- P Cartwright (Chair)
- B Hayward
- R Bryant
- J H McGregor
- John Aburn
BroadcasterTelevision New Zealand Ltd
One News – item reporting preliminary hearing of private prosecution of Constable A for murder – report of evidence of prosecution witness – unbalanced – biased – broadcaster’s response to complainant assumed his sympathy for Constable A – complainant argues that assumption influenced determination
Standard 4 – coverage of trial ongoing – day’s coverage balanced – no uphold
Standard 6 and guideline 6a – one day’s evidence reported fairly – no uphold
This headnote does not form part of the decision.
 The evidence given by a prosecution witness about events he had seen in Waitara on the morning of the shooting of Steven Wallace was dealt with in a news item which reported the second day of the private murder prosecution of Constable A. The item was included on One News broadcast on TV One on 22 January 2002 between 6.00–7.00pm.
 John Aburn complained to Television New Zealand Ltd, the broadcaster, that the item was biased and unbalanced as it focused on the "ludicrous" evidence given by one witness, and dealt inadequately with the cross-examination.
 In response, TVNZ said balance was required "within the period of current interest" for an ongoing story, and the item had reported fairly the evidence given on the specific day. TVNZ noted its assumption that the complainant was convinced of Constable A’s innocence.
 On the basis that TVNZ’s assumption affected the way it dealt with the complaint, Mr Aburn referred the complaint to the Broadcasting Standards Authority for review under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have viewed the news item complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Day two of the preliminary hearing of the private prosecution of Constable A for the murder of Stephen Wallace was covered in an item broadcast on One News between 6.00–7.00pm on 22 January 2002. The item dealt with the evidence of Mr Kettle, a prosecution witness, and reported the events that he said that he had seen on the night of the incident. It also reported that, in cross-examination, he had been asked about a golf cap being worn by a person near the scene on the morning of the death.
 Mr Aburn complained that the item was biased against the Police as it reported "ludicrous" evidence from a "so-called" witness and dealt inadequately with the cross-examination. Mr Aburn considered that coverage of such a serious charge required "a balanced report".
 TVNZ assessed the complaint against Standards 4 and 6 in the Code of Broadcasting Practice for Free-to-Air Television. They read:
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
4a Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
6a Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.
The Broadcaster’s Response to the Complainant
 TVNZ explained that the item was one in an ongoing story as to whether Constable A should go to trial. In such a situation, it wrote:
it is inevitable that during the hearing of the witnesses for the prosecution it is their evidence which will dominate the news stories. By the same token, when witnesses for the defence are heard, the emphasis in news broadcast will be on them.
 As the report dealt with the second day of the hearing, and given the time restraints inherent in television news, TVNZ maintained that the item was fair and accurate. The coverage of the cross-examination included the reference to the golf cap as that was a new aspect of the case and, as the reporter noted in the item, it was not clear why that matter had been raised.
 With regard to Standard 4, TVNZ pointed out that the Standard allowed for balance "within the period of current interest". The ongoing coverage of the hearing satisfied that requirement, TVNZ stated, and there was no evidence that the item had dealt with that day’s evidence in an unbalanced way.
 Moreover, TVNZ considered that the item had not breached Standard 6, as it reflected the day’s evidence.
 TVNZ declined to uphold the complaint, and noted:
The [complaints] committee recognised that you are convinced of Constable A’s innocence. You are entitled to that view. However, as a disseminator of news, TVNZ must be seen to be even-handed and fairness to the constable does not require that we suppress evidence which might appear damaging to him, provided that TVNZ also summarise evidence in his defence.
The Referral to the Broadcasting Standards Authority
 When he referred his complaint to the Authority, Mr Aburn noted TVNZ’s comment that he was "convinced of Constable A’s innocence". As he could not understand how TVNZ had drawn that conclusion, but as it "would obviously influence" its decision, he referred his complaint to the Authority for review.
The Broadcaster’s Response to the Authority
 TVNZ said that if it had misinterpreted Mr Aburn’s position, then it apologised. However, it maintained that the assumption, mistaken or not, had not affected the determination of the complaint. The coverage of the hearing, it wrote, was even-handed over the period of current interest.
The Complainant’s Final Comment
 While noting that TVNZ had withdrawn its "erroneous assumption", Mr Aburn said that he wanted his complaint dealt with as he had complained about the "quality and calibre" of TVNZ’s reporting.
The Authority’s Determination
 Mr Aburn complained that the news item reporting the second day of a private prosecution of Constable A for the murder of Stephen Wallace was unbalanced. In its response to the complaint, TVNZ stated that Mr Aburn appeared to be "convinced of Constable A’s innocence". When Mr Aburn referred his complaint to the Authority, he argued that TVNZ’s assumption of his position, for which it had no evidence, seemed to affect its decision not to uphold his complaint.
 The Authority deals first with the complaint that the item was unbalanced. TVNZ highlighted the provision in Standard 4, entitled Balance, which states that balance can be achieved either in one programme, or in other programmes "within the period of current interest". TVNZ explained that the news item reported the evidence given on the second day of the trial, and that the ongoing coverage of the hearing would ensure that balance was achieved over time.
 The Authority accepts that in the coverage of hearings spread over some time, it is inevitable that each day’s news will concentrate on that day’s evidence. The Authority also acknowledges that each day’s report might not include rebuttal evidence. It is also inevitable that the evidence given on any one day might not seem fair to either the prosecution or the accused. Nevertheless, provided the report deals with the evidence advanced fairly, Standard 4 and Standard 6 and guideline 6a will not be transgressed. The Authority accepts that the news item broadcast on 22 January met the requirements for balance and fairness referred to Standards 4 and 6.
 As TVNZ did not provide the full news coverage of the trial, the Authority is unable to assess the Standard 4 aspect of the complaint relating to the period of current interest.
 Turning to TVNZ’s assumption about Mr Aburn’s position on the trial, the Authority is of the view that this is not a matter for its deliberations.
 The Authority’s task is to determine whether the item breached the standards relating to balance and fairness. While it has read TVNZ’s letter in which the assumption is made, Mr Aburn’s letter in response, and TVNZ’s statement that "our mistaken assumption does not affect our determination of the complaint", it does not consider that this debate is relevant to its task.
 The Authority has examined the letter of complaint and the subsequent correspondence, and has also viewed the item. Having done so, it concludes that the standards were not contravened.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
18 April 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- John Aburn’s Complaint to Television New Zealand Ltd (through the Broadcasting Standards Authority) – 22 January 2002
- TVNZ’s Response to Mr Aburn – 12 February 2002
- Mr Aburn’s Response to TVNZ – 18 February 2002
- Mr Aburn’s Referral to the Broadcasting Standards Authority – 18 February 2002
- TVNZ’s Response to the Authority – 1 March 2002
- Mr Aburn’s Final Comment – 15 March 2002