BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
A Question of Justice – documentary examining the ongoing controversy surrounding the conviction of David Bain for the murders of five family members – included police video, photographs of the crime scene, and re-enactments of the murders – allegedly unfair and in breach of the violence standard

Findings
Standard 6 (fairness) – programme explored all different perspectives – not unfair to David Bain – not upheld

Standard 10 (violence) – murder scenes not gratuitous – not upheld

This headnote does not form part of the decision.

Broadcast

[1] A Question of Justice, broadcast on TV One at 8.30pm on 12 May 2005, examined the ongoing controversy surrounding the conviction of David Bain for the murders of five family members. The programme included police video and photographs of the crime scene, plus re-enactments of the murders and other scenes.

[2] The documentary was presented and produced by independent documentary maker Bryan Bruce, who offered his own conclusion at the end of the programme that David Bain’s conviction was probably sound.  A Question of Justice also contained interviews with key members of the police force who had been involved in the case, and lawyers who had been involved in both the prosecution and defence of David Bain.

Complaint

[3] Simon Boyce complained to Television New Zealand Ltd, the broadcaster, that the programme breached standards relating to fairness and violence.

[4 ]Referring to Guideline 10a of Standard 10 (violence), Mr Boyce questioned the repeated scenes of the Bain family being shot at close range. While there had been dispute over who had committed the murders, he said, it was gratuitous to repeat the murder scenes.

[5] The complainant also argued that the use of actors to reconstruct scenes that were often based on a single person’s evidence was unfair. He referred to a sequence depicting David Bain supposedly walking down a Dunedin beach with two friends, noting that it had been filmed in Petone. The reconstructions had contributed to a negative portrayal of David Bain, the complainant said. Referring to particular pieces of evidence presented in the documentary, Mr Boyce contended that these key issues had been slanted against David. Further, he argued that the programme had portrayed David as “part naïf and part killer, who had essentially implicated himself”.

Standards

[6] TVNZ assessed the complaint under Standards 6 and 10 and Guideline 10a of the Free-to-Air Television Code of Broadcasting Practice. They provide:

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.

Standard 10 Violence

In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.

Guideline 10a           

Broadcasters should ensure that any violence shown is not gratuitous and is justified by the context.

Broadcaster's Response to the Complainant

[7 ]Stating that the programme was an “authorial documentary”, TVNZ first considered whether the programme had breached Standard 10 (violence). TVNZ noted that the reconstructions were based on facts presented before the courts or in affidavit form, and did not involve any dramatic tricks. It added that “who shot who, when and how was central to the story being told”.

[8] In TVNZ’s view, far from being gratuitous, each time a scene was repeated it was illustrating a different perspective on the killings. For example, each killing was shown while the reporter described how it might be explained if David Bain was the killer; then the scenes were repeated to show how the same deaths might have occurred had his father Robin Bain been responsible.

[9] The broadcaster noted that the murder scenes had been replayed again to illustrate points raised by the prosecution, the defence, and to introduce some of the “missing” or inadmissible evidence which David Bain’s supporters had referred to since his conviction. It added:

With a mass of evidence to be considered, the sequences were used to clearly signpost which of the murders or incidents was being described at the time. With the number of victims, failure to repeat the sequences would have left some viewers scratching their heads and asking which murder was being discussed.

[10] TVNZ argued that in each case the viewer was asked to consider afresh what was known of the murder scene, and was invited to consider the different evidence or perspective which was being described. The broadcaster found that the repeated use of the murder scenes was not gratuitous, and concluded that Standard 10 was not breached.

[11] Considering the second part of Mr Boyce’s complaint, TVNZ wrote that his objection to the use of actors in the documentary “seemed obscure”. Actors had to be used to recreate the circumstances surrounding the Bain family killings, it observed. Further, TVNZ argued that it seemed of little importance exactly where the beach scene had been filmed. The beach scene, it said, was not a product of the producer’s imagination – it was part of the testimony given by David Bain’s friend and former girlfriend. TVNZ noted that the scene was part of a sequence which raised questions about David Bain’s state of mind at the time of the killings.

[12] TVNZ observed that the complainant had not set out any clear reasons as to why he found the item to be unfair (Standard 6). It said:

Certainly, after weighing up all the evidence and counter evidence presented at a High Court trial, a Court of Appeal hearing, a Privy Council hearing, a Police Complaints Authority review, a judicial review, and two subsequent hearings by the Court of Appeal, the presenter/producer expressed what was clearly identified as his opinion that David Bain was probably guilty, and that an explanation could be offered to explain a small number of outstanding disputes over evidence.

[13] The broadcaster contended that there was nothing wrong with a researcher expressing an opinion after studying all the evidence on a subject. The programme, it said, had clearly spelled out the case for those who believed Robin Bain was guilty. It had also outlined in detail the defence evidence offered by David Bain’s legal team in the several court hearings, TVNZ noted.

[14] In TVNZ’s view, viewers had been invited to consider the evidence for themselves and reach their own conclusions. The programme had not set out to advocate one theory over another, it said, and the producer’s conclusions were not expressed in a form which demanded that viewers share his opinion.

Referral to the Authority

[15] Dissatisfied with TVNZ’s response, Mr Boyce referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. TVNZ’s reply, he submitted, had not addressed his specific concerns. Whatever the status of “an authorial documentary”, Mr Boyce argued, the programme standards could still be applied.

[16] In the complainant’s view, the programme had clearly set out to advocate one theory over another, and there was more than a “small number of outstanding disputes” over the evidence. Mr Boyce wrote that his specific complaints were not about the consideration of the evidence heard in the case, but were about the depiction of David Bain in the documentary. He said:

The programme went beyond the evidence, to test the author’s own pet theory, and to provide speculative accounts of David Bain’s character and his mental state using actors. Whatever the merits of a lengthy consideration of the evidence, the use of actors was intended to portray David Bain as a killer, and to suggest that the verdict was correct in any case.

[17] Mr Boyce maintained that the repeated scenes of the killings were gratuitous, despite being simulated. He claimed that the “character assassination” of David Bain breached the fairness standard, even though the simulated scenes were “utterly unconvincing”. Further, Mr Boyce contended that a scene portraying David Bain walking on the beach with two friends had never happened.

Broadcaster’s Response to the Authority

[18] In response to the Authority, TVNZ denied that the programme had amounted to a “character assassination” of David Bain. While it had reached a conclusion that his conviction was probably sound, the programme had also examined the alternative theory that Robin Bain may have been the killer. TVNZ maintained that it was not a character assassination when a work of investigative journalism reached a conclusion largely in accordance with what had been established through the judicial process.

Complainant’s Final Comment

[19] In his final submission, Mr Boyce agreed that there was no problem in presenting a particular point of view and then proceeding to examine the evidence. However, he argued that the programme did not make it clear that the presenter was taking one side until well into the programme.

[20] Mr Boyce submitted that some of the reconstructions in the programme were irrelevant to the case, and slanted against David Bain. He maintained that the repetition of murder scenes had breached Standard 10.

Further Correspondence from TVNZ

[21] Having discussed Mr Boyce’s complaint with the producer of A Question of Justice, TVNZ wished to comment on the complainant’s remark that “presumably the ‘beach scene’ would have been more convincing if it had actually taken place”.

[22] TVNZ pointed out that while the scene had been filmed on Petone Beach and not St Kilda, the content of the scene had been taken from sworn testimony. The broadcaster observed that it is not unusual, when the geographical locations are not relevant, for makers of documentaries to film sequences at locations different from those where the events actually occurred.

[23] In response to the question of “character assassination”, TVNZ quoted the producer of the programme, who had emailed the following passage to TVNZ:

I do not believe I ‘assassinated the character of David Bain’. The actor was directed by me to play the role in two modes – as the innocent David and as the guilty David. I believe the actor did a brilliant job in this regard. Moreover the first time we meet David in the drama the actor does a stunning job of portraying the real David’s claim to be shocked at discovering his family dead.

Further Correspondence from the Complainant

[24] Responding to TVNZ’s letter, Mr Boyce commented that the whole idea of a “guilty David” and an “innocent David” was inappropriate. He argued that the portrayal of David Bain as innocent or as a “homicidal maniac” went beyond details of the court case. Mr Boyce was not convinced that the beach scene was based on sworn testimony. 

[25] With respect to violence, the complainant submitted that the impact of the repeated murder scenes was not lessened just because they were simulated. Further, he argued that if the repetition did make the scenes less shocking to viewers, then this desensitising was part of the problem.

Authority's Determination

[26] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

Standard 6 (fairness)

[27] Mr Boyce has argued that the programme amounted to a “character assassination” of David Bain, and was therefore in breach of Standard 6. He was concerned that the scenes simulated by actors had portrayed David Bain in a negative light.

[28] The Authority accepts TVNZ’s submission that the reconstructions in the programme were based on the testimony and affidavits of witnesses.  Further, the Authority finds that the programme investigated both scenarios – one in which David Bain was responsible for the murders, and the alternative in which he was innocent. In advancing the latter case, the Authority observes that the programme outlined in detail the defence offered by David Bain’s legal team, and also examined the alternative theory that Robin Bain was the killer.

[29] While the presenter offered his conclusion that David Bain’s conviction was probably correct, this of itself is not a breach of the fairness standard. The Authority observes that the presenter’s opinion was offered towards the end of the documentary when the arguments for and against David Bain’s guilt had been canvassed. Further, the Authority considers that there is nothing in broadcasting standards that prevents a programme maker from offering their opinion on an issue following a lengthy description of the competing arguments, provided both sides of an argument have been fairly and accurately presented. The Authority also agrees with TVNZ that the presenter’s conclusion was not expressed in a form which demanded that viewers share his opinion.

[30] Mr Boyce also expressed concern that the “beach scene” was filmed at Petone, instead of at St Clair where the incident occurred. The Authority notes that it is a common occurrence for dramatisations of past events to be staged at a different location to where the event actually occurred. On this occasion, the Authority finds that the use of this mechanism in no way impacted on the essential information being imparted in that section of the programme.

[31] The Authority finds that the programme was not unfair to David Bain, and it does not uphold the Standard 6 complaint.

Standard 10 (violence)

[32] Standard 10 requires broadcasters to exercise care and discretion when dealing with the issue of violence. There are a number of contextual factors that the Authority considers were relevant on this occasion:

• the time of the broadcast, from 8.30pm
• the AO classification of the programme
• the murder scenes were presented in a factual manner, and were not sensationalised
• the subject matter of the documentary (the conviction of a man for the murders of five family members) was easily recognised as being more appropriate for adult viewers.

[33] The complainant has specifically argued that the programme breached Guideline 10a, stating that the violence shown was gratuitous. In the Authority’s view, the murder scenes were a fundamental part of the documentary. It agrees with TVNZ that the scenes were used as a tool to show how the same deaths might have occurred had Robin or David Bain been responsible. Because the segments were necessary to show different perspectives on the murders, the Authority does not agree with the complainant that the repeated use of the murder scenes was gratuitous.

[34] The Authority considers that in the context of the programme, the broadcaster took sufficient care in dealing with the portrayal of violence. Accordingly, the Authority declines to uphold the Standard 10 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
18 August 2005

Appendix

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

1. Simon Boyce’s formal complaint – 13 May 2005
2. TVNZ’s decision on the formal complaint – 1 June 2005
3. Mr Boyce’s referral to the Authority – 10 June 2005
4. TVNZ’s response to the Authority – 21 June 2005
5. Mr Boyce’s final comment – 28 June 2005
6. Further correspondence from TVNZ – 18 July 2005
7. Further correspondence from Mr Boyce – 21 July 2005