Boyce and Television New Zealand Ltd - 2000-149, 2000-150
- P Cartwright (Chair)
- J Withers
- L M Loates
- Simon Boyce
ProgrammeOne News, Tonight, Assignment
BroadcasterTelevision New Zealand Ltd
One News, Tonight, Assignment – inaccurate, reports of new evidence about William Sutch trial
Standard G14 – not inaccurate – no uphold
Standard G19 – action taken insufficient – uphold
Broadcast of statement
This headnote does not form part of the decision.
Items on One News and Tonight, broadcast on 30 March 2000 at 6.00pm and 10.30pm respectively, examined what was described as new evidence relating to the 1975 trial of Dr William Sutch. The reports arose in the context of an Assignment programme, also broadcast that evening, in which the historic charges against Dr Sutch were reviewed.
Simon Boyce complained that claims made in the two news bulletins were not substantiated in the Assignment programme, and that a still photograph shown in the news item was a misrepresentation of events. He also complained that the Assignment programme was inaccurate because it contained unsubstantiated allegations.
TVNZ responded that some significant new material was contained in the Assignment programme, including the fact that there was a KGB member at the embassy in Wellington at that time. It acknowledged that the still photograph was inaccurately referred to as being of Dr Sutch meeting a Soviet embassy official when in fact it was of him being stopped by police. It upheld that aspect of the complaint.
Dissatisfied with TVNZ’s decision, both on the aspects not upheld and its action taken on the upheld aspect, Mr Boyce referred the complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons given below, the Authority upholds the complaint that the action taken by TVNZ, having upheld an aspect of the complaint, was insufficient.
The members of the Authority have viewed tapes of the items complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.
An item on One News, repeated on Tonight, claimed that new evidence implicated Dr William Sutch as having been a spy. The items were broadcast on 30 March 2000 at 6.00pm and 10.30pm respectively. The reports included footage from an Assignment programme which also screened that evening at 8.30pm.
Simon Boyce complained to TVNZ that the news items were inaccurate when they referred to new evidence, since he said none was presented in the Assignment programme. He also complained about the inclusion of a still photograph, said in the news items to be of Dr Sutch meeting a KGB man, when in fact it was of Dr Sutch and a police officer. Mr Boyce contended that the Assignment programme contained unsubstantiated allegations. The programmes, he said, breached standards G14, G15 and G19 of the Television Code of Broadcasting Practice.
TVNZ assessed the complaints under the nominated standards. They read:
G14 News must be presented accurately, objectively and impartially.
G15 The standards of integrity and reliability of news sources should be kept under constant review.
G19 Care must be taken in the editing of programme material to ensure the extracts used are a true reflection and not a distortion of the original event or the overall views expressed.
TVNZ refuted Mr Boyce’s contention that no new evidence had been presented on the Assignment programme. Among the new material presented, it noted, was the evidence contained in the interview with the former Russian Charge d’Affaires who confirmed that a man known to have been Dr Sutch’s acquaintance had been the KGB resident at the embassy in Wellington. This fact, TVNZ added, had not been presented at the Sutch trial.
Also considered significant, TVNZ continued, was that Mr Makarov, the Charge d’Affaires, had not known what was in a package given by Dr Sutch to the KGB man, and further, that Mr Makarov considered it "strange" that Dr Sutch had arranged to meet the man late at night, in the rain and in an obscure part of the city. It noted also the reference to Dr Sutch’s diary, which had been ruled inadmissible at the trial, and the interview with a police officer who still maintained that Dr Sutch was guilty of espionage.
TVNZ concluded that this information added up to a "fresh perspective" on an intriguing episode in New Zealand’s history. It declined to uphold the complaint under standard G14.
Turning to the complaint under standard G15, TVNZ observed that Mr Boyce had not linked this to any specific part of the news item or Assignment programme. As a general observation on sources, TVNZ expressed its view that it had acted professionally in seeking its information from those who were closest to the case. It suggested that Mr Boyce was wrong in suggesting the story was built simply around the memories of a former police officer.
With respect to standard G19, TVNZ said it accepted that in the news item a still photograph was inaccurately referred to as being a photograph of Dr Sutch meeting a Soviet Embassy official. Although this error was regretted, it was TVNZ’s view that it did not have a substantial impact on the accuracy of the item overall. TVNZ upheld this aspect.
In his referral to the Authority, Mr Boyce complained that despite TVNZ acknowledging a breach of standard G19, it had not accepted that the item was inaccurate, or that there was a question about the reliability of the news source.
In Mr Boyce’s view, the use of the photograph was a "deliberate fabrication" and had had a significant effect on the accuracy of the news story. He also noted that TVNZ had failed to justify the claim made by the news presenter on both the news items that the Mitrokhin files referred to contained information which implicated Dr Sutch. The fact was, he suggested, that TVNZ was "using so-called news stories as promos for later programmes".
As final points Mr Boyce listed some matters which he said were not substantiated in the programme.
In its response to the Authority, TVNZ denied that it was unusual for the news presenters to discuss the forthcoming Assignment programme. Next, it dealt with what it described as an inference in the complaint that the programme endeavoured to find that the acquittal verdict in Dr Sutch’s trial had been wrong. That, it said, was not the purpose of the programme. It said it accepted that the jury had been unable to convict Dr Sutch on the evidence it had before it at the time of the trial. Nevertheless, it continued, in all branches of history, revision occurred on the basis of new evidence or a new perspective. The purpose of the programme, it continued, had been to show the new direction in which historical scholarship was progressing on this matter.
In his final comment, Mr Boyce repeated that in his view, there was no news story which justified the items. He also questioned the broadcaster’s practice of using a lead item as a promo for a later programme.
He said that the Assignment programme had described Dr Sutch as a hero of the left, but then sought to equate this with spying, without using scholarly argument. He suggested that TVNZ was unaware of the distinction between the so-called "hard left" and liberal intellectuals like Dr Sutch. He noted that a correspondent to the Listener had also stated that the views of some of those featured in the item offered unsupported personal opinions.
The Authority’s Findings
The news items
The complainant contended that the news items breached standard G14 because no new information was actually presented in the Assignment programme to prove that "the only New Zealander ever tried for espionage was almost certainly a spy for the Soviet Union", as the items alleged.
He also complained that a still photograph was incorrectly identified as being of Dr Sutch meeting the Soviet official, when in fact it showed Dr Sutch with a police officer. That aspect was upheld by TVNZ.
In its response, TVNZ identified the following as constituting the "new evidence" uncovered by the Assignment programme:
confirmation from the interview with Mr Makarov, the former Charge d’Affaires, that Mr Razgovorov, the person Dr Sutch was alleged to have met, was the KGB agent resident at the Wellington embassy
Mr Makarov’s observation that it was strange for Dr Sutch to meet someone late at night in the rain and in an obscure part of the city
"telling evidence" from Dr Sutch’s diary, which had not been put to the jury at the time because it was inadmissible
the police officer’s belief that he was certain Dr Sutch was guilty
the fact that jury members had not been told of a "parcel" as described by Mr Makarov
The question for the Authority is whether the news items were accurate in describing these matters as "new evidence". It acknowledges that it had not been presented at the trial that Mr Razgovorov was a KGB agent, however this information was revealed in a Sunday Star Times article published in 1993. Because they were ruled inadmissible, the diary entries had not been given in evidence then either. The other purported "new evidence", the Authority notes, related to the opinions and recollections of Mr Makarov – which involved a change in his earlier account – and the police officer.
The Authority concludes that although the news headlines somewhat overstated the case in describing the Assignment programme as revealing new evidence that Dr Sutch was almost certainly a spy for the Soviet Union, information had come to light which had not been presented at the trial and could, on a wide sense of it, be described as new. In particular, the Authority notes Mr Makarov’s expanded claim during his interview that a package brought back to the embassy by Mr Razgovorov’s driver had come from Dr Sutch. As the Authority accepts that these matters amounted to "new evidence", it declines to uphold this aspect of the complaint.
The Authority turns next to the complaint that TVNZ had, in the news items, incorrectly identified a still photograph as showing Dr Sutch "meeting a Soviet Embassy official late at night in Wellington led to his arrest under the Official Secrets Act". The Authority notes that TVNZ upheld this aspect. However, it does not agree with TVNZ that the matter did not have a substantial impact on the accuracy of the item overall. In the Authority’s view, the wrongly captioned photograph created an impression that it was an incontrovertible fact that Dr Sutch had met Mr Razgovorov. The Authority considers that the use of this wrongly captioned photograph served to endorse Mr Makarov’s account with credibility and authenticity which was not justified in the circumstances. Because of the implications of this error on the item’s accuracy, the Authority upholds the complaint that the action taken by TVNZ was insufficient.
Mr Boyce also questioned what he described as a practice of the broadcaster in making a news story out of a promo for a documentary, which he contended breached standard G15. In the Authority’s view, the subject matter for a news item is generally a question of editorial discretion for the broadcaster. It declines to uphold this aspect.
The Assignment programme
Mr Boyce also complained that as some claims had not been substantiated in the programme it was therefore in breach of standard G14. He referred to the report on Dr Sutch’s trip to England in 1935, which he contended could not have taken place since it was election year that year. The Authority has not been provided with any evidence to refute this claim, and is not aware from the complaint of any other claims which were not able to be substantiated. Accordingly, it declines to uphold this aspect.
For the reasons given, the Authority upholds the complaint that the action taken by Television New Zealand Ltd, having upheld the complaint that an aspect of items on One News and Tonight, broadcast on TV One on 30 March 2000 at 6.00pm and 10.30pm respectively, breached standard G19 of the Television Code of Broadcasting Practice, was insufficient.
The Authority declines to uphold any other aspect of the complaints.
Having upheld a complaint the Authority may make orders under s.13 and s.16 of the Broadcasting Act 1989. Accordingly, it invited the parties to make submissions on penalty.
Mr Boyce submitted that an appropriate penalty would be the broadcast of a public apology by TVNZ and possibly a financial penalty as well. TVNZ’s submission argued that the publication of this decision was a sufficient penalty. It noted first that after receiving Mr Boyce’s complaint it had acknowledged that an error had been made, and secondly that appropriate disciplinary action had been taken against the staff involved in the error being broadcast. In its view, any effort to broadcast a correction carried "enormous risks", particularly as it would lift out of context one particular incident in the Sutch saga.
The Authority has considered these submissions. In its view, publication of this decision alone is not a sufficient penalty, given the seriousness of the breach. Accordingly, the Authority makes the following order:
Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to broadcast a statement within one month of the date of this Decision. The statement shall be broadcast at a time and date to be approved by the Authority and shall contain a summary of this Decision in a form approved by the Authority.
Signed for and on behalf of the Authority
12 October 2000
The following correspondence was received and considered by the Authority when it determined these complaints:
1. Simon Boyce’s Complaint to Television New Zealand Ltd – 4 April 2000
2. TVNZ’s Response to the Formal Complaint – 19 April 2000
3. Mr Boyce’s Referral to the Broadcasting Standards Authority – 26 April 2000
4. TVNZ’s Response to the Authority – 18 May 2000
5. Mr Boyce’s Final Comment – 23 May 2000
6. Mr Boyce’s Submission on Penalty – 25 September 2000
7. TVNZ’s Submission on Penalty – 2 October 2000