Boyce and Television New Zealand Ltd - 2010-102
- Peter Radich (Chair)
- Leigh Pearson
- Tapu Misa
- Mary Anne Shanahan
- Simon Boyce
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News and TVNZ News at Eight – news items before documentary The Investigator: The Case Against Robin Bain screened – 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 – news items stated that Mr Bruce had drawn conclusions about Robin’s alleged motive through examining the testimony of a surprise witness – did not state what his conclusions were – allegedly in breach of accuracy standard
One News Tonight and TVNZ News Now – late-night news items after the documentary screened revealed Mr Bruce’s conclusions about the surprise witness – allegedly in breach of accuracy standard
Standard 5 (accuracy) – promotion of the documentary and embargo on the details of Mr Bruce’s findings did not result in any of the news items being inaccurate or misleading – not upheld
This headnote does not form part of the decision.
 An item on One News, broadcast on TV One at 6pm, and repeated on TVNZ News at Eight on TVNZ 7 at 8pm on Tuesday 6 July 2010, reported that “The case surrounding the Bain family murders is being tested again, this time in a documentary screening [on TV One] tonight. The investigation comes a year after David Bain was found not guilty of killing his mother and father and three siblings.”
 The reporter stated that “It was always a case of David or Robin,” and the documentary maker, Bryan Bruce, was shown stating that Robin was not treated fairly at the trial because he had no defence. The reporter said that Mr Bruce had examined three months’ worth of footage from David Bain’s retrial, and that “his opinion is clear”. Mr Bruce then stated that there was “absolutely no forensic evidence that points towards Robin being the murderer”.
 The reporter said that Mr Bruce had “also drawn conclusions” about Robin Bain’s alleged motive. “He won’t reveal them to us yet but says they surround the testimony of a witness who gave evidence for the defence,” said the reporter. Mr Bruce stated, “The police didn’t know anything about this person or what he was going to say.” The reporter said that Mr Bruce believed police should reinvestigate some parts of David Bain’s case in light of his new information. Mr Bruce said that “any thinking New Zealander needs to be concerned about what went on in the High Court in Christchurch with regard to this surprise witness.”
 The reporter concluded the item by saying that David Bain’s lawyers had written to the documentary’s producers asking that it not be broadcast while they were organising an application for compensation, and that they were reserving comments until after the documentary had aired.
 The documentary, titled The Investigator: The Case Against Robin Bain, screened later on the evening of 6 July 2010, on TV One at 9.30pm. 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. Mr Bruce first discussed his view that there was no forensic evidence linking Robin Bain to the murdered family members. He also claimed to have uncovered new information in relation to the testimony of the defence’s surprise witness at the retrial, a photocopier salesman who gave evidence about his interaction with Robin Bain as principal of Taieri Beach School. Mr Bruce interviewed two other people, a former employee at the school, and another photocopier salesman, and reached the conclusion that the surprise witness had given misleading evidence.
 Following the documentary, an item on One News Tonight, broadcast on TV One at 10.30pm on 6 July, and repeated on TVNZ News Now at 11pm on TVNZ 7, reported that:
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 in-court footage from David Bain’s retrial and says a last minute defence witness may have given misleading evidence.
 The reporter stated that “[Name] was a late witness who gave evidence in David Bain’s defence. His testimony surrounded meetings he claimed he’d had with David Bain’s father, Robin. ... In the years before the murders [the witness] said he’d visited Robin Bain’s school three times to try to sell it a photocopier. He told the court about a meeting with Robin Bain.” The witness was shown telling the Court that he had been told by Robin’s school that Robin was “likely to be in his van at the Taieri mouth camping ground”, and that when he went to the camping ground he had “smelled alcohol and that’s why [he] thought [Robin] wasn’t at school.”
 An excerpt from The Investigator was shown, in which Mr Bruce said, “So [the witness] said he knocked on the back door of the van and Robin came out naked except for a towel. If you take a look at this photo of Robin’s van on the day of the murders, you can see that he’s built a wall right across the back of it.” The reporter said that Mr Bruce had examined three months of evidence from the retrial, and had found two witnesses who believed that the witness’s recollection of events was incorrect. One of them believed that he was the salesman who sold the photocopier to the school, not the witness, and that the witness had never mentioned meeting Robin. Mr Bruce was shown phoning the witness and asking him if they could have a discussion about his testimony. However, the man had declined to appear in the documentary, the reporter said.
 The item concluded with Mr Bruce saying it was up to police to decide what would happen next, and the reporter stated that David Bain’s lawyers were considering their response to the documentary.
 Simon Boyce made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the news items breached Standard 5 (accuracy). He considered that the early evening news item was “simply a form of promo or trailer for the documentary” and that Mr Bruce was “coy about the new evidence he claims to have found”. However, he said, in the second item “he does give details about the new evidence against a defence witness”. Mr Boyce argued that this was misleading and was not impartial, because the first item was broadcast to “tee up the issue as being controversial... and was ratings driven”, and viewers could not “trust that there is newsworthiness in the item”.
 Mr Boyce noted that the second news item questioned whether Bryan Bruce did have substantive new evidence to the extent that the police should re-examine the evidence given by one of the witnesses. With reference to the evidence given by the witness, and scrutinised by Mr Bruce, the complainant considered that “it is hardly headline news that someone’s memory of 1993 is being questioned in 2010”.
 Standard 5 and guideline 5c of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:
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.
News must be impartial.
Broadcaster's Response to the Complainant
 TVNZ pointed out that “the information about the evidence given by [the surprise witness] was embargoed until 10.30pm. This meant that all media including press, other TV stations and TVNZ were not permitted to discuss the information until after 10.30pm.” It did not consider that this led to any inaccuracy in the earlier news items, and said that it was “common practice for media to respect the embargo on information”.
 Further, TVNZ argued that it was common for news broadcasts to occasionally contain information about programming that might be of interest to viewers or which was newsworthy in its own right. It maintained that “Bryan Bruce’s findings on some of the evidence in what has become a notorious case, was newsworthy, and was appropriate to screen in a news bulletin”. TVNZ noted that other broadcasters and press ran news items about the documentary and Mr Bruce’s findings in the following days.
 Accordingly, TVNZ declined to uphold the Standard 5 complaint about the news items.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Boyce referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
Broadcaster’s Response to the Authority
 With regard to the embargo on the information contained in the documentary, TVNZ argued that the programme and the information did not belong to TVNZ, but belonged to the production company who made the programme. One News had to observe the same embargo surrounding the information that all other media had to observe, it said. TVNZ stood by its earlier arguments in relation to Standard 5.
Complainant’s Final Comment
 Mr Boyce maintained that it did not make sense to place an embargo on the information in the documentary, and that the early news items were “trailers” for the programme rather than “actually newsworthy”.
 The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 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.
 Mr Boyce argued that the news items breached Standard 5 because the early evening items promoted the documentary and did not reveal Mr Bruce’s conclusions, while the later news items did. He considered this was misleading and not impartial (guideline 5c). He argued that the items were not newsworthy.
 In our view, TVNZ was entitled to report on the documentary prior to it being broadcast. We consider that complying with an embargo and previewing the documentary without revealing the specifics of Bryan Bruce’s findings would not have resulted in viewers being misled. The earlier items simply reported that Mr Bruce had re-examined the David Bain retrial from a different angle, namely, focusing on the case against Robin as presented by the defence team, and that he had reached the conclusion that Robin could not have committed the murders. It was then open to viewers to watch the documentary if they wanted further information about Mr Bruce’s investigation and his conclusions.
 Similarly, we do not consider that it was inaccurate or misleading for the later news items to discuss Mr Bruce’s findings while the earlier items did not, or that reporting on the documentary in this way jeopardised the impartiality of the news. We agree with the broadcaster that the subject matter of the documentary related to a notorious New Zealand court case and was therefore newsworthy in its own right and likely to be of interest to many viewers. We note that the documentary was also covered in other media following its broadcast.
 Accordingly, we find that none of the news items were inaccurate or misleading, and we decline to uphold the Standard 5 complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
23 November 2010
The following correspondence was received and considered by the Authority when it determined this 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