BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Boyce and Karam and Television New Zealand Ltd - 2010-130

Members
  • Peter Radich (Chair)
  • Leigh Pearson
  • Tapu Misa
  • Mary Anne Shanahan
Dated
Complainants
  • Joe Karam
  • Simon Boyce
Number
2010-130
Channel/Station
TV One
Standards Breached

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Investigator: The Case Against Robin Bain – documentary maker, Bryan Bruce, gave his perspective on the case against Robin Bain, by re-examining the evidence against Robin given at David Bain’s retrial – concluded that there was no forensic evidence connecting Robin with the murders – also investigated whether surprise witness at the retrial had given misleading evidence – allegedly in breach of privacy, controversial issues, accuracy and fairness standards

Findings
Standard 6 (fairness) – not unfair to not include viewpoints of the defence and David Bain – not upheld – Daryl Young was not given a fair and reasonable opportunity to respond to the issues raised about his testimony – unfair – upheld

Standard 4 (controversial issues – viewpoints) – programme discussed a controversial issue of public importance – it was an authorial documentary approached from a particular perspective as envisaged by guideline 4b – Mr Bruce referred to aspects of the defence case – viewers could reasonably be expected to be aware of other views – not upheld

Standard 5 (accuracy) – clearly Mr Bruce’s analysis of the evidence not statements of fact – complainants did not specify how segment concerning Daryl Young was inaccurate – not upheld

Standard 3 (privacy) – broadcast of phone call with Daryl Young did not breach his privacy – no private facts disclosed – not upheld

No Order

This headnote does not form part of the decision.


Broadcast

[1]   A documentary, titled The Investigator: The Case Against Robin Bain, was broadcast on TV One at 9.30pm on Tuesday 6 July 2010. The documentary maker, Bryan Bruce, gave his perspective on the case against Robin Bain, re-examining the evidence against Robin given at David Bain’s retrial. He introduced the programme as follows:

In 1995 a Dunedin jury found David Bain guilty of murdering his family. But after serving 13 years he faced a second jury who came to the opposite conclusion, that he was not guilty. So what are we to think of Robin Bain now? The Judges in both trials put the question to the jury: was it Robin or was it David? But I’m not sure that was the most helpful formulation of the issue, because only David was on trial. The question it seems to me should have been, what was the evidence that David did it? And the answer according to the second jury was: not enough, not guilty.

Robin of course will never stand trial. Yet in the court of public opinion there are many who think that he must have done it. So I decided to review the evidence at the retrial solely with the case against Robin in mind. To see what, if anything, might persuade a jury that he murdered his family and took his own life. What you are about to see is my personal opinion, based on my investigation of the case...

[2]   Mr Bruce explained that he made the programme after studying the court transcripts and footage of the trial because he was interested in determining why the jury in the retrial delivered the opposite result of David Bain’s first trial in 1995. He said, “No one comes to this case with a completely open mind, but having said that, I’m a professional and I’m evidence-driven and not on any particular crusade. I started by asking the question: What is the evidence that Robin Bain did it?”

[3]   Mr Bruce first discussed his view that there was no forensic evidence linking Robin Bain to the murdered family members, and he showed what he considered to be an unlikely chain of actions that Robin would have to have performed, including completely changing his clothes prior to killing himself, and shooting himself without leaving any fingerprints on the gun he used. He also noted that hearsay evidence in the second trial about Robin’s motive for killing his family went unchallenged.

[4]   Mr Bruce also claimed to have uncovered new information in relation to the testimony of the defence’s surprise witness at the retrial, a photocopier salesman, Daryl Young, who gave evidence about his interaction with Robin Bain as principal of Taieri Beach School. Mr Bruce began by saying that “one man told a story about Robin to the jury that I have real doubts about”. Parts of the court footage from the retrial were shown, in which Mr Young described his visits to the school and his interaction with Robin when he went to find him at the Taieri Mouth camping ground to finalise paperwork for the sale of a photocopier.

[5]   Mr Bruce challenged Mr Young’s account of events using a photograph of Robin Bain’s van. He also interviewed two other people, a teacher formerly employed at the school, and another photocopier salesman, with regard to Mr Young’s evidence about visiting the school and selling the photocopier to Robin. The other salesman claimed that he had sold the photocopier, not Mr Young, and that he was not aware of Mr Young visiting the school as many times as he said he did. The teacher answered Mr Bruce’s questions about the day that Mr Young claimed to have visited the school, and her answers contradicted Mr Young’s evidence. Following his interview with the teacher, Mr Bruce said, “The morning after my interview with [the teacher] I decided to call Daryl Young in the hope that he would be willing to meet with me and discuss his court testimony.”

[6]   Mr Bruce was then shown sitting in a car phoning Mr Young, whose responses could be heard on the phone. The following exchange took place:

Young:        Hello.

Bruce:         Good morning, can I speak with Daryl Young please?

Young:        Speaking.

Bruce:         Daryl it’s Bryan Bruce speaking here. I make a programme called The Investigator;
                  it screens on TV One. Am I speaking with the Daryl Young that gave evidence at
                  the Bain trial?

Young:        Um yeah, that’s right.

Bruce:         Okay. Look I’m working on an episode about Robin Bain, and I’ve got some
                  documents and photographs that appear to contradict the evidence that you
                  gave in court and I wondered if I could show them to you and have a
                  discussion with you about it.

Young:        Oh look I’ve moved on mate.

Bruce:         Well this is pretty serious. I mean they do suggest that what you said in
                  court wasn’t accurate.

Young:        Oh I don’t, I don’t know about that mate.

Bruce:        You don’t know about it? Do you know a Mr [name of photocopier salesman]?

Young:        I know [him], yeah.

Bruce:        Yeah? Well he says that he sold the photocopier to the school.

Young:        Well that’s inaccurate. It went through in his name, but I sold it.

[7]   Mr Bruce concluded the segment by saying:

Shortly after this Daryl Young made it very clear that he didn’t want to talk to me and hung up. Which is a pity, because now we have two versions of the events, and I can’t tell you who’s right, and who’s wrong. It’s certainly a matter which in my opinion needs further investigation as to why the jury did not get to hear from fellow teacher [name] or copier salesman [name].

Complaints

[8]   Simon Boyce and Joe Karam made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the programmes breached broadcasting standards.

Mr Boyce’s complaint

[9]   Mr Boyce argued that The Investigator breached Standards 4 (controversial issues) and 6 (fairness). He considered that Bryan Bruce had “the appearance of acting independently in seeking to clear Robin Bain of suspicion”. With regard to the standards he said, “if this is meant to be an ‘authorial documentary’ as mentioned in [Standard] 4, it still has to be asked if [Mr] Bruce gave any opportunity for other key viewpoints, and in regard to fairness, if he did not distort the facts of the legal case.” Mr Boyce considered that Mr Bruce should have mentioned that one of the policemen involved had lost in defamation proceedings against David Bain’s supporter Joe Karam, regarding allegations that evidence had been planted by police. He argued with regard to fairness that Mr Bruce was “obligated to broadcast evidence that casts doubt on the crime scene, and David Bain’s viewpoint”.

Mr Karam’s complaint

[10]   Mr Karam argued that The Investigator breached Standards 3 (privacy), 4 (controversial issues), 5 (accuracy) and 6 (fairness).

[11]   Mr Karam said, “This documentary was manifestly unfair and unbalanced in that it did not make a genuine attempt to present the defence arguments against Robin Bain”. He maintained that the programme “put up a scenario of the defence case about Robin that was incomplete and inaccurate, and which as a consequence barely resembled the actual case presented at trial”. He considered that the programme omitted vast amounts of significant evidence, or misrepresented evidence, and therefore that “the entire basis on which the programme was promoted and presented was false, unbalanced and unfair,” and that viewers were seriously misled about what actually happened during the retrial.

[12]   Mr Karam argued that, while the programme was authorial, that did not excuse it from being fair, balanced and accurate, particularly as it related to a “very public and historical event” and as “such serious allegations are being made”. The complainant considered that the programme maker should have asked the defence to put forward its case in the documentary, or at the very least have put his claims to the defence for a response. He attached a letter from David Bain’s lawyers Duncan Cotterill, sent prior to the broadcast, listing points which they considered should be included in the programme. Noting that Mr Bruce had requested an interview with David Bain on 24 May, Mr Karam argued that the matters he wanted to put to him were “absurd” and irrelevant to the subject matter. He also argued that the “few minutes” afforded to Michael Reed QC, the defence counsel, the following evening on Close Up “cannot on any reasonable assessment be construed as an opportunity for rebuttal”.

[13]   Mr Karam maintained that the programme contained a number of inaccurate or misleading statements upon which Mr Bruce relied in reaching his conclusions, including:

  • Claims that socks and clothes that Robin Bain was alleged to have removed were never found. Mr Karam said that there were a number of pairs of socks and items of clothing belonging to Robin that were part of the clothes washed that morning. This was the defence’s case, he said, but it was not mentioned.
  • Claims that Daryl Young was a surprise witness. Mr Karam maintained that he was “no more a surprise than any other of the 50-plus witnesses called by the defence”. He also pointed out that in criminal trials the defence has no obligation to tell the Crown who it is going to call.
  • The conclusion that there was no forensic evidence linking Robin to the murders or to show that he killed himself. Mr Karam considered that there was “a vast amount of such evidence”, for example, “the recent injuries, teeth marks, residual blood, the bloody sock prints, unidentified fingerprints, and blood under Robin Bain’s fingernails, to name but a few”. These matters were “dealt with in a cursory misrepresentative manner or for the most part completely ignored,” he said.

[14]   The complainant asserted that the promotion and reporting of the documentary – including a promo, items on Breakfast and One News, and also an item on One News Tonight after the documentary screened – contained “highly sensational material” and were “predicated on the theme that the programme contained new evidence of such an explosive nature that it would cause great concern in the public domain as to ‘what went on in this court during the Bain retrial’”.

[15]   Mr Karam was of the view that the programme was “biased, unfair, inaccurate and unbalanced” in its treatment of the witness, Daryl Young. He considered that “the manner in which [Mr] Young was ambushed and the subsequent screening of the recorded offending phone call from [Mr] Bruce to [Mr] Young from his car is unfair under the privacy provisions of the Act”. Mr Karam also argued that “the slur on Mr Young’s integrity inevitably reflected onto the defence team”. He considered that Mr Bruce had “no excuse” for failing to put his allegations about Mr Young to the defence team.

[16]   In summary, Mr Karam maintained that Mr Bruce had “a known bias” and that the programme “deliberately and falsely portrayed the defence case as hopelessly inadequate”. He considered that “In doing so it cast a slur on David Bain and his defence team,” and that Daryl Young was “falsely maligned in a most unprofessional manner and by imputation all of the other defence witnesses had a slur cast over their integrity”.

Standards

[17]   Standards 3, 4, 5 and 6 and guidelines 4b and 5a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of these complaints. They provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guideline 4b

The assessment of whether a reasonable range of views has been presented takes account of some or all of the following:

  • the programme introduction;
  • whether the programme approaches a topic from a particular perspective (e.g. authorial documentaries, public access and advocacy programmes);
  • whether viewers could reasonably be expected to be aware of views expressed in other coverage.
Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

  • is accurate in relation to all material points of fact; and/or
  • does not mislead.

Guideline 5a

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster’s Response to Mr Boyce’s Complaint

Standard 4 (controversial issues)

[18]   Looking first at Standard 4, TVNZ noted that the Authority had previously defined a controversial issue of public importance as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public” (e.g. Powell and TVWorks1).

[19]   TVNZ argued that, while the case against Robin Bain was controversial, it was not an issue of public importance because the information in the programme related to Robin Bain in connection with the murders of his family, “and can have no bearing on any further Court proceeding”. TVNZ considered that the discussion of evidence was “very specific to the Bain family murders and would not therefore be considered of ‘public importance’”.

[20]   The broadcaster referred to a previous decision by the Authority,2 in which it found that two items discussing suppressed evidence from David Bain’s retrial did not discuss a controversial issue of public importance to which Standard 4 applied.

[21]   TVNZ concluded that Standard 4 did not apply on this occasion. However, it said, even if The Investigator did discuss a controversial issue of public importance, the programme was an authorial documentary, and significant points of view had been presented within the period of current interest.

The programme was an authorial documentary

[22]   The programme was clearly authorial, TVNZ argued, and therefore did not require the same degree of balance as other programmes (guideline 4b). It considered that “It is an important safeguard for freedom of expression that individuals are entitled to look at issues from a particular perspective and express their honestly held opinions.” The broadcaster contended that The Investigator had been consistent in its presentation and format throughout three series, namely, “the unravelling of a particular case or aspect of a case by [Mr Bruce] and the personal observations or conclusions he draws from that”. It considered that the Robin Bain special was consistent with that style, and also noted that Mr Bruce emphasised at the beginning of the programme that “what you are about to see is my personal opinion, based on my investigation of the case”. He couched all of his conclusions in the programme in terms of his opinion, TVNZ said.

Significant points of view were presented within the period of current interest

[23]   TVNZ also contended that significant points of view on the contents of the documentary had been presented within the period of current interest, in other programmes. It noted that in a Close Up item the following night on 7 July, Michael Reed QC had stated in relation to the documentary, “it is absolute rubbish. It’s been proved to be wrong... Mr Young did do what he says and he’s corroborated by other employees at the time. It’s corroborated by other witnesses at the trial. The family are talking nonsense when they suggest there was nothing wrong with Robin Bain...”

[24]   Alternatively, TVNZ argued that The Investigator, in examining the case against Robin Bain for the first time, had added another perspective during the period of current interest in the Bain murders.

[25]   TVNZ accordingly concluded that Standard 4 was not breached by the broadcast of The Investigator.

Standard 6 (fairness)

[26]   TVNZ argued that Bryan Bruce had “neutrally looked at the evidence” from the David Bain retrial to determine, “in his opinion”, the strength of the case made by David Bain’s lawyers against Robin Bain. It said that David Bain’s lawyers were aware that the documentary was being made, and that David Bain was offered the opportunity to comment on the issues discussed but declined on at least two occasions. It argued that it was not necessary to interview his lawyers about the points canvassed in the documentary because “the central tenet of the documentary was not ‘did David Bain do it?’ The question was ‘can we prove that Robin Bain did it?’” TVNZ noted that Mr Bruce had been granted access to all of the court camera footage from the retrial, and also listened to the defence’s arguments, Mr Reed QC’s address to the jury and the Judge’s summing up. It considered that, in the context of the programme, “as outlined by Mr Bruce it is entirely possible that the evidence against both men is found to be ‘not enough’”. “The lack of evidence against one does not implicate the other,” it said.

[27]   In response to Mr Boyce’s query as to whether Mr Bruce should have sought other viewpoints, TVNZ reiterated its view that the programme was authorial and told from Mr Bruce’s perspective. It argued that this was permitted under the standards and was made very clear throughout the programme.

[28]   With regard to Mr Boyce’s query as to whether Mr Bruce had “distorted the facts of the legal case”, TVNZ provided comment from Mr Bruce. Mr Bruce considered that it was unreasonable to expect him to cover off every matter raised at the three-month-long retrial in 45 minutes. He said that he had selected some important elements – namely that Robin did not have any of his son Stephen’s blood on him, and that he did not leave any fingerprints on the gun – which he considered had to stand up for the case against Robin Bain to be proven beyond reasonable doubt. He noted that matters raised by the defence regarding blood splatter were covered in the documentary.

[29]   Mr Bruce went on to say that he had not sought an interview with David Bain’s lawyers “because the documentary was about Robin, and the case presented against him presented by the defence was made totally available to me in the court camera footage, and the complete trial documents”. However, he noted that he had offered David an interview, which was refused.

[30]   With regard to Mr Boyce’s argument relating to the policeman interviewed and his defamation case, Mr Bruce said that in the programme the former crime scene officer had merely described the crime scene which he had witnessed. In other words, TVNZ said, it was not necessary to provide information about the defamation case or other evidence in relation to the policeman.

[31]   TVNZ concluded that the documentary did not breach Standard 6.

Bill of Rights

[32]   TVNZ said that, “Given the extent of public debate on this case over an extended period and representing a range of perspectives both for and against David Bain, [it had] no doubt that the programme [was] in the public interest and [engaged] freedom of expression at a high level.” It therefore contended that “any limitation on free speech must be compellingly justified”, and it did not consider that it was justified by Mr Boyce’s complaint. TVNZ stated, “As the Authority has previously stated,3 expression that is in the public interest should not be sanctioned as any such sanction would be an unreasonable limitation on the right to free expression.”

Broadcaster’s Response to Mr Karam’s Complaint

Standard 3 (privacy)

[33]   TVNZ considered Standard 3 in relation to Mr Karam’s concerns about the treatment of Daryl Young.

[34]   The broadcaster said that when it considered a privacy complaint it must first decide whether the person whose privacy had allegedly been interfered with was identifiable in the broadcast. It accepted that Mr Young was identifiable.

[35]   The next issue, TVNZ said, was to consider whether the programme disclosed any private facts about Mr Young. It considered that his testimony at the retrial was a matter of public record.

[36]   TVNZ noted that a phone call between Mr Bruce and Mr Young was shown, in which Mr Bruce was filmed talking to him on the phone. It argued that Mr Bruce was “legally entitled to record and film the telephone conversation”, and that the conversation was not expressed to be “off the record”. Further, it said, Mr Bruce had identified himself and explained that he was making a programme about the case against Robin Bain, so “it would have been reasonable to assume that the conversation would be recorded in some way and may be used for possible broadcast.” TVNZ considered that “There was nothing embarrassing or objectionable in the recording itself that made the contents of the phone call a ‘private fact’”, and it concluded that there was nothing in the footage concerning Mr Young that could be considered a private fact.

[37]   TVNZ argued that the defence in privacy principle 8 of the Authority’s Privacy Principles applied because “the detail given by Mr Young in the phone call is of public interest”. It considered that it was important to include Mr Young’s response, to the extent that he gave one, because it was relevant to the issues under discussion.

[38]   TVNZ therefore declined to uphold the Standard 3 complaint.

Standard 4 (controversial issues – viewpoints)

[39]   TVNZ considered Standard 4 in relation to Mr Young, and also in relation to Mr Karam’s argument that the defence’s case should have been presented in the programme, and that the claims made by Mr Bruce should have been put to the defence team for a response.

[40]   TVNZ reiterated the arguments it made in relation to Mr Boyce’s complaint (see paragraphs [18] to [25]). It considered that, “while there is some controversy surrounding apparent inconsistencies between Daryl Young’s evidence and documents and accounts obtained elsewhere, this controversy relates to the evidence of one witness in the trial of one individual who cannot be retried”.

[41]   With regard to the presentation of the defence’s and David Bain’s point of view, TVNZ noted that a court order allowing Mr Bruce access to material from the trial meant that Mr Bruce had access to all of the arguments that both the defence and the Crown had made in Court. It provided the following comment from Mr Bruce in this respect:

I was not confused by any matter “the defence team” raised at trial so I did not feel the need to request any explanatory interview with Mr Reed QC, as he and [David Bain’s counsel] had made their arguments very plain at the time of the trial... I note in passing, in respect to balance and fairness, that no interview with Prosecution appears in the documentary either and that Prosecution arguments are quoted from the Court camera footage in the same way that Defence arguments were quoted.

[42]   TVNZ also maintained that the defence’s position was well known and had been reported throughout the original trial, the retrial, and the release of suppressed material. It said, “Viewers could reasonably be expected to be aware of these defence views expressed in other coverage.”

[43]   In response to Mr Karam’s argument that there was “no excuse for Mr Bruce failing to put his allegations about Mr Young to the defence team”, TVNZ argued that there was “no legitimate reason” for Mr Bruce to put these allegations to the defence team, and that the appropriate person to approach was Mr Young himself, who gave comment as he saw fit and this was included in the programme. It noted that the phone conversation included Mr Young’s reaction to the other salesman’s claim that he sold the photocopier. He said, “Well that’s inaccurate. It went through in his name but I sold it.”

[44]   The broadcaster emphasised that, having presented Mr Young’s evidence, the sales documentation, the conflicting accounts of the other interviewees, and Mr Young’s response to them, Mr Bruce “did not then try to reconcile those various accounts”. TVNZ considered that he “placed no blame and ascribed no wrongdoing on Mr Young’s part in regard to the evidence he gave in Court. [He] simply suggested that there are now two versions of events and without Mr Young’s clarification it cannot be ascertained which version is the correct one.”

[45]   In terms of presenting significant points of view on the documentary within the period of current interest, TVNZ argued that, in addition to the inclusion of Mr Young’s response in the programme, his perspective and the perspective of the defence team were “strongly put by members of the defence team and Mr Young in other programmes on TVNZ and in other media over the days following the programme”. With regard to the Close Up interview with Mr Reed QC (see paragraph [23]), TVNZ noted that Mr Reed QC also referred to a TV3 news item earlier in the evening, saying that the documentary “caused great concern to Mr Young which is... if people have been watching TV3 tonight you will have seen Mr Young explain the whole position and he’s an entirely truthful witness and there is no basis whatsoever for the main point of the promos, for the programme saying that they’ve got ‘new evidence’. It’s rubbish. There is no new evidence.” The following segment was contained in the TV3 news item:

Young:         I possibly went earlier... it was a separate sales call altogether and a separate sale...

Reporter:     A copy of the sales document produced in the documentary last night showed
                   another man, [name], had completed the sale, not Young. But Young says it’s
                   possible [the other salesman] sold an upgraded copier to Robin at a later date.

Young:         It’s been two, two visits you know. I did a visit in ’91, [the other salesman] most likely did
                   one in ’93. Given my experience with Robin Bain I probably wasn’t that keen to go
                   back... The reality is that there’s been two calls, two separate sales calls – it’s
                   been mixed up as one.

[46]   TVNZ noted that the news item also discussed comments from Mr Young’s colleague who described him as a “man of integrity”.

[47]   TVNZ therefore concluded that Standard 4 had not been breached.

Standard 5 (accuracy)

[48]   TVNZ said that it had considered Standard 5 in relation to the footage regarding the defence case, the footage of Daryl Young, Breakfast, the news items, and the promo.

Claims of inaccuracy with regard to the “defence team” evidence

[49]   TVNZ maintained that Mr Bruce had considered all of the points raised in Duncan Cotterill’s letter which the lawyers considered should be included, and had concluded “in the main that they were not compelling pieces of evidence that would persuade a jury that Robin murdered his family”. It noted that some of these points were raised in the programme. TVNZ argued that “there was no requirement for Mr Bruce to address the entire defence case in the programme”, nor was there “a realistic expectation that an hour-long programme could do so”.

Specific points alleged to be inaccurate

[50]   TVNZ considered the three points raised by Mr Karam under accuracy.

[51]   With regard to the complainant’s argument that the programme did not mention that Robin’s clothes were in the washing machine on the day in question, TVNZ argued that:

  • The defence did not dispute that Stephen bled profusely so the offender must have got a lot of blood on them.
  • David Bain did not report any blood on any article of clothing that he put in the washing machine, so it was reasonable to assume that if Robin changed his clothes they were not in the washing machine.
  • It was never established which clothes in the washing machine belonged to whom.

[52]   Turning to the complainant’s second point, that it was inaccurate to refer to Daryl Young as a “surprise” witness, Mr Bruce commented:

The likely evidence of many of the defence witnesses could be predicted from their affidavits tabled by the defence in the many appeals leading up to the retrial... Prosecution lawyer [name] has stated that he had “absolutely no idea of the evidence [Mr Young] was to give before he gave it.” On this basis I think I was entitled to describe Mr Young as “a surprise” witness.

[53]   With regard to the third point, that Mr Bruce should have referred to evidence linking Robin to the murders, and to the points raised by Duncan Cotterill, TVNZ reiterated that these were “carefully considered in the preparation of the programme” and that there was no requirement for Mr Bruce to address the entire defence case in the programme, nor was this a realistic expectation. TVNZ argued that Mr Karam had not raised any new information that was not available in the court footage. It concluded that the decision to not include this material was an editorial one which Mr Bruce was entitled to make.

Footage of Daryl Young

[54]   TVNZ noted that Mr Karam had not specified a point of fact that was misleading or inaccurate in relation to Daryl Young. It maintained that the documentary “neutrally looked” at the evidence he gave and accurately reported it by showing the court footage. The broadcaster also considered that Mr Bruce “[raised] legitimate and genuinely held questions about Mr Young’s evidence, but they are [his] opinion, and not points of fact to which the accuracy standard applies”.

Breakfast, One News, One News Tonight, and promo for The Investigator

[55]   Noting Mr Karam’s argument that the news items were inaccurate or misleading because they referred to “new evidence”, TVNZ pointed out that the news items said the following:

...but on Robin Bain’s motive, Bryan Bruce has also drawn conclusions. He won’t reveal them to us yet but he says they surround testimony of a witness who gave evidence for the defence... and Bryan Bruce claims his new information should have police reinvestigate some parts of the case. (One News)

A documentary maker who researched the Bain family murder trial says the police need to investigate information which casts doubt on evidence from the trial. Bryan Bruce studied court footage from David Bain’s retrial and says a last minute defence witness may have given misleading evidence. (One News Tonight)

[56]   Given that neither news item referred to “new evidence”, TVNZ declined to uphold the complaint that they were inaccurate.

[57]   TVNZ said that Breakfast on 6 July featured an interview with Mr Bruce about the documentary, and argued that Mr Bruce defined “new evidence”, when he said:

I think I need to be clear about what the “new evidence” is. I mean, it’s not forensic, because I think it is very clear from the trial evidence, the evidence that is presented in trial, that Robin didn’t do it. There is simply no forensic evidence to show that Robin Bain murdered his family. What’s new is that I attack the motive aspect of the trial – the alleged incest allegation and that he was some sort of debauched man who was an alcoholic or whatever. And I go to that. So the new evidence is in the area of motive – motive was of course a very large argument in the trial so to that extent it’s new evidence.

[58]   The broadcaster did not consider that this definition of “new evidence” was inaccurate or would have misled viewers.

[59]   With regard to the promo for The Investigator, which did contain a graphic stating “new evidence”, TVNZ maintained that a promo was not a news, current affairs or factual programme and therefore Standard 5 did not apply.

[60]   Accordingly, TVNZ declined to uphold any part of Mr Karam’s accuracy complaint.

Standard 6 (fairness)

[61]   TVNZ noted that Mr Karam had argued that “the manner in which Mr Young was ambushed and the subsequent screening of the recorded offending phone call from Mr Bruce to Mr Young from his car is unfair”. It argued that, “There was no ‘ambush’ phone call. It is not usual to alert the recipient of a phone call that you will ring them before you make the call.” It considered that, as Mr Young refused to comment further, the phone call was the only material representing Mr Young’s response. It reiterated that Mr Young’s comment on the photocopier sale was included.

[62]   TVNZ was of the view that Mr Bruce’s phone call was polite and courteous, and that there was nothing unfair about his approach. It said that Mr Bruce believed that Mr Young had made it very clear he did not wish to be contacted by him again, and so Mr Bruce chose not to follow up their first conversation, for risk of Mr Young feeling he was being harassed. It noted that Mr Bruce considered that if Mr Young had changed his mind, he could have contacted him through TVNZ.

[63]   With regard to the broadcast of the phone call, TVNZ argued that Mr Bruce was legally entitled to record and film the conversation. It considered that the conversation was not said to be “off the record”, and given that Mr Bruce had explained he was making a documentary and was interested in Mr Young’s evidence, it was reasonable to assume that it would be recorded in some way and may be broadcast. TVNZ concluded that “There was nothing embarrassing or objectionable in the recording itself that made it unfair to Mr Young.” TVNZ reiterated that if Mr Young had agreed to be interviewed, the phone call would not have been included, but it was the only material representing his response. TVNZ contended that “in all the circumstances, given the apparent direct conflict between Mr Young’s evidence and the information Mr Bruce had obtained... it was in the public interest to broadcast Mr Young’s response as recorded in the phone call”.

[64]   TVNZ therefore concluded that Standard 6 was not breached.

Bill of Rights

[65]   TVNZ repeated the arguments about freedom of expression and the Bill of Rights that it made in relation to Mr Boyce’s complaint (see paragraph [32]).

Referrals to the Authority

[66]   Dissatisfied with the broadcaster’s response, Mr Boyce and Mr Karam referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Mr Boyce’s referral

[67]   Mr Boyce argued that “the public believes all news items are of public importance”. He also considered that, as the case had led to law changes it must be publicly important.

[68]   The complainant considered it was inconsistent for TVNZ to argue that The Investigator was an authorial documentary while also arguing that Mr Bruce “neutrally looked” at the evidence. He reiterated that he believed the omission of aspects of the case and information about the policeman’s proceedings against Mr Karam resulted in bias. Mr Boyce considered that “It can’t be possible to say ‘the lack of evidence against one does not implicate the other’... if Mr Bruce is correct [about the lack of evidence against Robin] then David must be implicated.”

[69]   With regard to fairness, Mr Boyce argued that “there was no objective treatment of the people interviewed in regard to the photocopier sales... certainly the two people helping Mr Bruce’s case are presented differently to [Daryl Young]”.

Mr Karam’s referral

[70]   Mr Karam considered that TVNZ had not adequately addressed his concerns. Looking at Standard 4, Mr Karam argued that, notwithstanding TVNZ’s view that the programme was an authorial documentary, Mr Bruce failed to provide an adequate opportunity to David Bain or the defence team to respond to the claims made in the programme. Noting that TVNZ argued that “the defence position in this regard is well known”, Mr Karam maintained that the defence position had never been thoroughly espoused in relation to whether there was evidence to support the proposition that Robin committed the murders. Mr Karam said he did not accept TVNZ’s argument that the programme did not discuss a controversial issue of public importance.

[71]   Mr Karam maintained that, as Mr Bruce had ignored Duncan Cotterill’s advice, almost every forensic evidence link relating to Robin had been excluded. He maintained that this “resulted in an unbalanced and biased programme” which breached multiple standards.

Broadcaster’s Responses to the Authority

Mr Boyce’s referral

[72]   TVNZ stood by its earlier arguments in relation to Standard 4. It maintained that Mr Bruce had neutrally looked at the evidence from the retrial and discussed his opinion on the findings. With regard to the complainant’s concerns about the policeman interviewed, TVNZ reiterated that the policeman had only commented on what he witnessed at the crime scene.

[73]   With regard to fairness, Mr Bruce considered that Mr Young would not have been treated differently to the other interviewees if he had agreed to meet and discuss his version of events. He said that he had phoned the other interviewees in the same way as he had phoned Mr Young.

Mr Karam’s referral

[74]   TVNZ argued that Mr Karam had not described which points from the programme he considered to be “false, unbalanced and unfair”. It reiterated that Mr Bruce “did not have to request interviews with Defence or Crown counsel about arguments made in court, because he had the benefit of full access to them as captured on courtroom video at the time of the trial”. TVNZ also noted that the prosecution’s arguments were quoted from the court footage in the same way that the defence’s arguments were presented.

[75]   The broadcaster reiterated its view that Mr Bruce was not required to state the defence case in its entirety in the programme, but rather was entitled to offer his opinion on the pieces of evidence that he found the most compelling with regard to Robin Bain.

[76]   With regard to Mr Karam’s argument that Mr Bruce failed to provide an adequate opportunity to David Bain and his defence team to respond to claims made in the programme, TVNZ maintained that the programme focused on the case against Robin Bain and “did not refer to the case against David Bain”. It argued that “the defence position on each of the points of evidence that seems to link Robin Bain to the murder of his family was discussed in the programme”. TVNZ reiterated its view that Mr Bruce was entitled to make an editorial decision not to include the points raised by Duncan Cotterill, that it was not necessary to address the entire defence case in the programme, and that it was not realistic to do so in a one-hour programme.

Complainants’ Final Comments

Mr Boyce’s final comment

[77]   The complainant contended that Mr Bruce “was on the record before this programme stating categorically that there was no forensic evidence against Robin Bain”, implying that he had always been of the view that Robin was innocent. The complainant maintained that the media had always presented the case as “either David or Robin did it”. Mr Boyce reiterated his argument that the policeman’s defamation proceedings were “critical to what came after in terms of evidence, and an objective person would have noted this”. Mr Boyce again objected to the treatment of Daryl Young. He contended that Mr Bruce “already had a view on the veracity of Mr Young’s testimony” and therefore it was “not a neutral encounter on the phone”, as shown in the programme.

Mr Karam’s final comment

[78]   Mr Karam considered that the broadcaster had conceded that the programme did not sufficiently address the defence case, “and indeed goes further and states that in one hour that is not possible”. Mr Karam reiterated his view that the programme misrepresented the defence’s arguments and evidence, and implied that “the defence case was a preposterous nonsense which the Crown, the judge and the jury had all failed to detect”.

[79]   With regard to Daryl Young, Mr Karam reiterated his objection to Mr Bruce’s “ambush” phone call. He also maintained that, if the allegations about Mr Young’s evidence had been put to the defence, “the answers would have removed any doubt” about his visits to the school, Robin Bain’s van, and Mr Young’s involvement in the case. Mr Karam reiterated his view that it was inaccurate to refer to Mr Young as a “surprise” witness, as there were many witnesses called by the defence who were “equally unknown to the Crown”.

[80]   Finally, Mr Karam summarised the “basic tenets” of the defence case that he considered should have been included in the programme.

Broadcaster’s Final Comment

[81]   TVNZ argued that “The Investigator... did not purport to address the ‘defence case’. Mr Bruce and the programme were quite clear that the focus of the programme was ‘the case against Robin Bain’,” it said. It noted that Mr Bruce had provided a response which addressed in detail each of the points raised by Duncan Cotterill, and why he had not included them in the programme. TVNZ reiterated its view that it was not possible or required in an hour-long programme to address the entire “defence case”.  It said that Mr Bruce considered that, “The public does not expect a retrial from a television programme, it expects an examination of salient points.”

[82]   TVNZ addressed each of the “basic tenets” of the defence case as listed by Mr Karam. It noted that a number of them had been covered in the programme and emphasised that Mr Bruce had read the entire trial transcript, watched all of the available court footage, and applied for all of the documents held by the court. It reiterated that he had invited David Bain for an interview, but David had declined.

Authority's Determination

[83]   The members of the Authority have viewed a recording of the broadcast complained about, as well as the other items referred to by Mr Karam, and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.

Standard 6 (fairness)

[84]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[85]   The complainants considered that the programme was unfair to Daryl Young and to David Bain.

Daryl Young

[86]   In his referral, Mr Boyce argued that Mr Young had been treated unfairly because Mr Bruce approached and presented him in a different manner to the other interviewees. Mr Karam argued that the programme was “biased, unfair, inaccurate and unbalanced” in its treatment of Mr Young, and that “the manner in which [Mr] Young was ambushed and the subsequent screening of the recorded offending phone call from [Mr] Bruce to [Mr] Young from his car is unfair under the privacy provisions of the Act”.

[87]   At the outset, we disagree that Mr Young was “ambushed”. Mr Bruce did not need permission to phone him, and he clearly explained at the beginning of the phone call who he was, that he was making a programme, and what the programme was about.

[88]   However, in our view, the matters about which Mr Bruce was phoning required the broadcaster to ensure that Mr Young was offered a fair and reasonable opportunity to provide a response. Mr Bruce was raising serious issues about the veracity of Mr Young’s testimony, which TVNZ must have known would have a significant impact both on Mr Young, and in the media, given the high level of public interest in David Bain’s case.

[89]   While we acknowledge that Mr Bruce did not expressly state that Mr Young had given false evidence, we consider that most viewers would have been left with that impression, due to Mr Bruce’s suggestions that the recollections of the other two interviewees, the sales documents, and the photos of Robin’s van, “contradict” what Mr Young said in court, and that what he said “wasn’t accurate” (see paragraph [6]).

[90]   In these circumstances, we consider that one phone call, without any follow-up, did not represent sufficient or reasonable efforts by the broadcaster to engage with Mr Young and obtain a meaningful response from him. As noted above, the implication that Mr Young may have given false evidence was serious; therefore the broadcaster needed to ensure that Mr Young was given every opportunity to comment. TVNZ needed to ensure that Mr Young was fully cognisant of what the programme might say about him, and understood the implications of his refusing an interview. We do not think this was achieved by a single phone call to Mr Young’s home on a Saturday morning. In our view, Mr Young should have been given an opportunity to reconsider his position. While we hesitate to be overly prescriptive, we consider that the broadcaster should have made at least one more approach and – given that the issues concerned events which had taken place some 17 years before and that there were conflicting accounts from the other two interviewees to consider – this approach should have been made in writing to give Mr Young an opportunity to think carefully about what Mr Bruce was alleging and form a response accordingly.

[91]   With regard to the argument made by TVNZ and Mr Bruce that he had given Mr Young the opportunity to discuss these issues, and that he believed Mr Young had made it clear he did not want any further contact with him, we consider that the broadcaster was obliged to make further offers to Mr Young to comment, for example by writing to him and enclosing copies of the relevant documents. The onus was not on Mr Young to contact Mr Bruce, but on the broadcaster to ensure Mr Young was given a reasonable opportunity to provide a response.

[92]   Accordingly, we find that the broadcaster treated Mr Young unfairly because he was not given a reasonable opportunity to provide a response to the allegations made about him in the programme.

[93]   Having reached this conclusion, we must consider whether to uphold this part of the complaints as a breach of Standard 6. In Commerce Commission and TVWorks Ltd,4 the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[94]   We find that upholding a breach of the fairness standard on this occasion would be commensurate with our finding that Mr Young was treated unfairly because the programme raised serious issues regarding the veracity of his evidence, which would have a significant impact on Mr Young’s reputation, and the broadcaster did not ensure that he was given a fair and reasonable opportunity to respond to those matters.

[95]   In this respect, upholding the complaint clearly promotes the objective of Standard 6, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. Accordingly, we uphold the complaint that The Investigator breached Standard 6 in relation to the treatment of Daryl Young.

David Bain

[96]   In his complaint, Mr Boyce said, “it still has to be asked... in regard to fairness, if [Mr Bruce] did not distort the facts of the legal case”. He argued that Mr Bruce was “obligated to broadcast evidence that casts doubt on the crime scene, and David Bain’s viewpoint”. He considered that David had been “implicated”. Mr Karam argued that, “This documentary was manifestly unfair and unbalanced in that it did not make a genuine attempt to present the defence arguments against Robin Bain”.

[97]   We note that Mr Bruce extended an invitation to David Bain for an interview, and that this was declined. Given that the retrial was given extensive media coverage, including the broadcast of a considerable amount of footage from the courtroom, we consider that it was not necessary, in the interests of fairness, to broadcast a response from David. Most viewers would be well aware of the arguments put forward in his defence, and which advanced the proposition that Robin had committed the murders. Accordingly, we decline to uphold this part of the fairness complaints.

Standard 4 (controversial issues – viewpoints)

[98]   Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[99]   On this occasion, we consider that the programme examined the issue of whether Robin Bain could have committed the murders of his family. We acknowledge that David Bain’s trials generated a high level of public interest and controversy, and we therefore find that the programme amounted to a discussion of a controversial issue of public importance for the purposes of Standard 4. Guideline 4b states:

The assessment of whether a reasonable range of views has been presented takes account of some or all of the following:

  • the programme introduction;
  • whether the programme approaches a topic from a particular perspective (e.g. authorial documentaries, public access and advocacy programmes);
  • whether viewers could reasonably be expected to be aware of views expressed in other coverage.

[100]   In our view, The Investigator was clearly an authorial documentary, approached from the perspective of Bryan Bruce. We consider that Mr Bruce clearly defined the scope of the programme in his introduction, when he said:

...I decided to review the evidence at the retrial solely with the case against Robin in mind. To see what, if anything, might persuade a jury that he murdered his family and took his own life. What you are about to see is my personal opinion, based on my investigation of the case...

[101]   The programme was clearly a presentation of Mr Bruce’s opinions and the result of his personal research. Throughout the programme Mr Bruce was on camera, linking his face and his name to the views he presented. He frequently used subjective language and made it clear to viewers that he was giving his personal interpretation of the evidence from the retrial.

[102]   The Authority has previously noted that “the obligation on a broadcaster to provide balance is not derogated from by guideline [4b], but rather allows a departure from strict compliance with the requirements of Standard 4”.5 Having found that The Investigator was an authorial documentary, we now turn to consider whether balance was achieved to the extent required under guideline 4b.

[103]   Mr Boyce and Mr Karam argued that the programme was unbalanced in a number of respects. We address each of their arguments below.

Defence’s perspective

[104]   Mr Boyce said in his complaint, “if this is meant to be an ‘authorial documentary’... it still has to be asked if [Mr] Bruce gave any opportunity for other key viewpoints”. Mr Karam argued that the programme was “unbalanced in that it did not make a genuine attempt to present the defence arguments against Robin Bain”. He considered that the programme omitted vast amounts of significant evidence, or misrepresented evidence, and that Mr Bruce should have asked the defence to put forward its case in the documentary, or at the very least should have put his claims to the defence for a response.

[105]   In our view, it was not necessary in the interests of balance, nor possible, to present the entire defence case from the retrial in a one-hour programme, or to refer to all of the points raised in Duncan Cotterill’s letter of 10 June. It was sufficient that Mr Bruce made reference to some aspects of the defence’s evidence and arguments, as a result of his approach in re-examining the evidence from the retrial, so that viewers were aware there were alternative perspectives. He was not required to explain those arguments in any detail, or to actively argue the case for the defence. Nor was he required to offer the defence an opportunity to comment on the programme, although we note that Mr Bruce did extend an invitation for an interview to David Bain, which was declined.

[106]   Further, we consider that, over the extensive period that David Bain’s case has been a matter of public interest, and given the significant media coverage it received, particularly during the retrial in 2009, most viewers could reasonably be expected to have an understanding of the defence’s case and its perspective on the issue of whether Robin committed the murders.

[107]   Accordingly, we find that the programme was balanced in this respect to the extent required under guideline 4b, and we decline to uphold this part of the Standard 4 complaint.

Daryl Young

[108]   Mr Karam was of the view that the programme was “biased... and unbalanced” in its treatment of Daryl Young. He argued that there was “no excuse for Mr Bruce failing to put his allegations about Mr Young to the defence team”.

[109]   As outlined above, we consider that the focus of the programme was whether Robin Bain could have committed the Bain family murders, from the perspective of Bryan Bruce, based on his personal research. We acknowledge that Daryl Young’s evidence was an integral part of Mr Bruce’s thesis on this matter, and therefore that alternative perspectives were required. We consider that Daryl Young, and not the defence, was the appropriate person to provide a response. We have already found above that Mr Young was treated unfairly in this respect because he was not given a reasonable opportunity to do so.

[110]   However, unlike fairness, balance can be achieved over the period of current interest and we consider that Mr Young’s perspective was adequately presented in other programmes within that period. The evening following the documentary, Michael Reed QC responded to Mr Bruce’s findings on Close Up, and Daryl Young was interviewed on 3 News (see paragraph [45]).

[111]   Accordingly, we find that the broadcaster did not breach Standard 4 in this respect.

Policeman

[112]   Mr Boyce argued that Mr Bruce should have mentioned in the programme that one of the policemen involved had lost in defamation proceedings against Mr Karam involving allegations that the police had planted evidence. In our view, this was neither relevant nor necessary for balance. The policeman’s participation in the programme was limited to his description of what he had seen at the crime scene. Given that the programme focused on the case against Robin Bain, based on Mr Bruce’s personal interpretation of the evidence, we do not consider that the omission of information about the defamation proceedings resulted in the programme being unbalanced in breach of Standard 4.

Standard 5 (accuracy)

[113]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[114]   Mr Karam argued that the following three aspects of the programme were inaccurate:

  • Claims that socks and clothes that Robin Bain was alleged to have removed were never found.
  • Claims that Daryl Young was a “surprise” witness.
  • The conclusion that there was no forensic evidence linking Robin to the murders or to show that he killed himself.

Socks and clothes

[115]   We consider that Mr Bruce’s findings in this respect were clearly presented as his analysis of the evidence put forward at the retrial (as explained by TVNZ in paragraph [51]), rather than statements of fact. Statements which are clearly distinguishable as analysis, comment or opinion are exempt from the accuracy standard under guideline 5a to Standard 5. Accordingly, we decline to uphold this part of Mr Karam’s complaint.

Daryl Young was a “surprise” witness

[116]   In our view, Mr Bruce’s reference to Mr Young as a “surprise” witness was not a material point of fact. Rather, it was Mr Bruce’s analysis of the circumstances in which Mr Young was called by the defence, and we consider that he was entitled to offer this opinion based on his explanation as outlined in paragraph [52] above. We therefore decline to uphold the complaint that Standard 5 was breached in this respect.

Mr Bruce should have referred to evidence linking Robin to the murders

[117]   Mr Karam argued that Mr Bruce “falsely portrayed the defence case as hopelessly inadequate”. TVNZ argued that Mr Bruce carefully considered the evidence raised by Duncan Cotterill in its letter of 10 June, and made an editorial decision not to mention most of it, though some points were referred to.

[118]   We are satisfied, having read Mr Bruce’s comments, that he did carefully consider the points raised by Duncan Cotterill, and reached the conclusion that they would not add anything to the issue under discussion in the programme. Mr Bruce was entitled to make an editorial decision to that effect. We do not consider that the omission of some of those points would have resulted in viewers being misled, given that the programme clearly focused on Mr Bruce’s analysis of the case against Robin, and given that most viewers would have been aware of the defence’s position due to media coverage of the retrial. We therefore find that Standard 5 was not breached in this respect.

Treatment of Daryl Young

[119]   Mr Karam argued that the programme was inaccurate in its treatment of Daryl Young. He did not specify which parts of the programme he considered to be inaccurate in this respect. Accordingly, we have no basis upon which to uphold this part of his accuracy complaint. In any event, we consider that his concerns about Mr Young have been appropriately addressed under fairness.

Breakfast, news items and promos

[120]   Mr Karam asserted that the promotion and reporting of the documentary – including a promo, items on Breakfast and One News, and also an item on One News Tonight after the documentary screened – contained “highly sensational material” and were “predicated on the theme that the programme contained new evidence of such an explosive nature that it would cause great concern in the public domain as to ‘what went on in this court during the Bain retrial’”.

[121]   We agree with the broadcaster that none of the news items referred to “new evidence”. With regard to Breakfast, we consider that Mr Bruce clearly explained what he meant by “new evidence”, when he said:

I think I need to be clear about what the new evidence is, I mean, it’s not forensic, because I think it is very clear from the trial evidence, the evidence that was presented in trial, that Robin didn’t do it. There simply is no forensic evidence to show that Robin Bain murdered his family. What’s new is... I attack the motive aspect of the trial, the alleged incest allegation, and that he was some sort of debauched man who was an alcoholic or whatever, and I go to that. So the new evidence is in the area of motive – motive was of course a very large argument in the trial. So to that extent it’s new evidence...

[122]   Accordingly, we find that viewers would not have been misled by Breakfast or the news items in this respect.

[123]   We accept that one promo for the documentary contained a graphic which stated “New Evidence”. However, we consider that this was hyperbole, used to promote The Investigator, rather than a “material point of fact”. Further, it could have referred to the new information that Mr Bruce obtained from the two people he interviewed, who had not testified in the retrial. Accordingly, we find that the graphic was not misleading or inaccurate in breach of Standard 5.

Standard 3 (privacy)

[124]   Mr Karam argued that “the manner in which [Mr] Young was ambushed and the subsequent screening of the recorded offending phone call from [Mr] Bruce to [Mr] Young from his car is unfair under the privacy provisions of the Act”.

[125]   When the Authority considers a privacy complaint, it must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. We accept that as his full name was disclosed and he was shown in the programme, Daryl Young was identifiable.

[126]   The next step is to consider whether any private facts were disclosed about Mr Young. The programme revealed that Mr Young gave evidence in David Bain’s retrial, some of his testimony as shown in the court footage and reported by Mr Bruce, that he was a photocopier salesman, and his phone call with Mr Bruce.

[127]   Mr Karam is concerned primarily with the broadcast of the phone conversation. In our view, the contents of the conversation did not amount to a “private fact”, as they related only to Mr Bruce’s own research, and Mr Young’s evidence relating to the photocopier sale was a matter of public record.

[128]   We also consider that Mr Karam’s concerns in this respect have been appropriately dealt with in our consideration of fairness above. Accordingly, we decline to uphold Mr Karam’s privacy complaint.

 

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of The Investigator: The Case Against Robin Bain on 6 July 2010 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[129]   Having upheld the fairness complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

Mr Boyce’s submissions on orders

[130]   Mr Boyce submitted that TVNZ should be ordered to broadcast a statement summarising the Authority’s decision during the early evening news.

Mr Karam’s submissions on orders

[131]   Mr Karam submitted that TVNZ and Mr Bruce should be ordered to publish an apology to Mr Young. He considered that Mr Young should be awarded costs, and that TVNZ should be ordered to pay costs to the Crown.

The broadcaster’s submissions on orders

[132]   On the matter of an order for a statement or an apology, TVNZ noted that the Broadcasting Act held the broadcaster responsible for the maintenance of standards, and therefore it was not appropriate to order Mr Bruce to apologise. It submitted that, if the Authority ordered a broadcast statement, it should be in the format that was routinely ordered, and in a similar time to the original programme which was screened at 9.30pm.

[133]   The broadcaster reiterated its view that the programme showed a side of the debate about the Bain family murders that had not often been discussed in the media. It considered that this was in the public interest.

[134]   TVNZ concluded that the publication of the decision would be sufficient penalty and that no other orders were warranted.

Authority’s Decision on Orders

[135]   Having considered the parties’ submissions regarding a broadcast statement and costs to the Crown, we are of the view that the publication of the decision is sufficient on this occasion. We are satisfied that the broadcaster believed a genuine attempt had been made to contact Mr Young, and that the breach resulted from a misjudgement rather than any deliberate actions by the broadcaster.

[136]  With regard to Mr Karam’s argument that TVNZ should pay costs to Mr Young, we note that section 16(1) allows the Authority to “order any party to pay any other party such costs and expenses... as are reasonable”. Mr Young is not a party to this complaint. However, he did lodge a separate complaint with this Authority, and the issue of costs was considered in that decision.6

Signed for and on behalf of the Authority

 

Peter Radich
Chair
18 March 2011

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

Simon Boyce’s complaint

1                  Simon Boyce’s formal complaint – 7 July 2010

2                 TVNZ’s response to the complaint – 6 August 2010

3                 Mr Boyce’s referral to the Authority – 11 August 2010

4                 TVNZ’s response to the Authority – 11 October 2010

5                 Mr Boyce’s final comment – 16 October 2010  

6                 Mr Boyce’s submissions on orders – 24 December 2010

7                 TVNZ’s submissions on orders – 11 February 2011

 

Joe Karam’s complaint

1                  Joe Karam’s formal complaint – 2 August 2010

2                 TVNZ’s response to the complaint – 30 August 2010

3                 Mr Karam’s referral to the Authority – 28 September 2010

4                 TVNZ’s responses to the Authority – 9 and 17 November 2010

5                 Mr Karam’s final comment – 23 November 2010

6                 TVNZ’s final comment – 30 November 2010

7                 Mr Karam’s submissions on orders – 20 January 2011

8                 TVNZ’s submissions on orders – 11 February 2011


1Decision No. 2005-125

2Halliwell and TVNZ, Decision No. 2009-091

3Walter and TVNZ, Decision No. 2009-073

4Decision No. 2008-014

5Anderson and Others and TVNZ, Decision No. 2003-028

6See Young and TVNZ, Decision No. 2010-119.