BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

In an opinion piece broadcast on The Breeze on 9 May 1995, Chris Gollins referred to

his recent appearance in Court and commented on what he regarded as incompetence of

the newspaper reporters. The newspaper report of his appearance, he said, had

focussed on him rather than the ex-gang member who he maintained had attacked him.

The attack, he added, had been unprovoked and the assailant had a history of violent

behaviour and, among other alleged offences arising from the fracas, had been charged

with threatening to kill a police officer.

Mr Joseph's solicitors complained to Capital City Radio Ltd that their client, the alleged

ex-gang member, although unnamed, was readily identifiable and that the broadcast

breached the standards requiring good taste and privacy of the individual.

The Independent Broadcasting Company (1990) Ltd advised Mr Joseph's solicitors that

it had sold the radio station known as The Breeze to the Frader Group in 1994. The

Frader Group did not respond to the complaint and, after 60 working days, Mr

Joseph's solicitors referred the complaint to the Broadcasting Standards Authority under

s.8(1)(b) of the Broadcasting Act 1989.

Eventually, Capital FM Ltd (trading as More FM) as the new owner of the radio station

accepted responsibility for the broadcast complained about. It apologised for not

responding within 60 working days, referring to an internal misunderstanding. As for

the substance of the complaint, Capital FM said that Mr Gollins was a provocative radio

commentator with an established reputation and that the comments broadcast on 9 May

were factually correct.

Dissatisfied with the response to the substance of the complaint, Mr Joseph's solicitors

referred the matter to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint that the broadcast breached

the complainant's privacy. It declines to determine the other aspect of the complaint.

Decision

The members of the Authority have read a transcript of the item complained about and

have read the lengthy correspondence (summarised in the Appendix). As it is practice,

the Authority determines the complaint without a formal hearing.

The Broadcast

Commentary pieces from Chris Gollins are broadcast regularly on The Breeze. His

recent appearance in the District Court was the issue he dealt with in the item broadcast

on 9 May 1995. Mr Gollins poured scorn on journalists generally and, specifically, on

the journalists who had reported his Court appearance for the Evening Post and The

Dominion. The "no hoper" from the former paper, he said, had made five mistakes

while the efforts of the "incompetent" from the latter required a published apology.

Mr Gollins then gave his version of the events from which his Court appearance had

eventuated. While riding his bicycle, he said, he was attacked by a motorist who had

been temporarily slowed down. Pointing out that the charges against him were

withdrawn or summarily dismissed, he spoke about the car driver whom he did not

name:

The ex-Satan's Slaves gang member was arrested by police at the scene. Among

the charges he's facing is one that relates to threatening to kill an off-duty police

officer also a cyclist. He's had a full day in Court for depositions with his

solicitor and barrister. He faces another hearing for a final deposition and then a

jury trial that could last up to three days. The sleaze won't report five minutes of

it. It doesn't interest them. His barrister has been told by police that they may

recommend increasing the severity of the charges he faces to ones that carry up to

five years imprisonment.

One of the reasons why the charges he faced were dismissed, Mr Gollins continued:

Part of the reason, statements produced to the Court from previous victims of the

same person. One victim stated he'd been frightened to go to the police out of

fear for his family.

The Complaint

Explaining that their client, Sean Joseph, was readily identifiable as the person referred

to, Mr Peters of C J O'Regan, Arndt, Peters and Evans, (barristers and solicitors)

complained to Capital City Radio Ltd that the malicious comments, in addition to being

defamatory, denigrated Mr Joseph and breached the broadcasting standards

requirements relating to good taste and decency and privacy of the individual.

The process involved in establishing the broadcaster – ie the owner of The Breeze on 9

May 1995 – is detailed in the Appendix. The complaint was first referred to the

Authority as the broadcaster did not respond within 60 working days. However,

Capital FM Ltd later accepted responsibility for the complaint and apologised for the

discourtesy of the delay in its response which, it said, had arisen from a

misunderstanding.

The Broadcaster's Response

The broadcaster stated that Mr Joseph's past involvement with the Satan's Slave

motorcycle gang was a fact and that his trial for assault arising from the incident was

scheduled for the near future. Moreover, it said, Mr Gollins held sworn statements

about Mr Joseph's previous victims which Mr Gollins was reluctant to release for fear

of retribution. Arguing that Mr Joseph's complaint seemed to be based on malice, the

broadcaster said that Mr Gollins' on air comments were motivated by the unfair print-

coverage of his trial. Mr Gollins, it added, had established a reputation as a provocative

radio commentator in Wellington since 1979. Declining to uphold the complaint, the

broadcaster concluded:

It would appear that this complaint is an extension of a personal dispute between

solicitors and their clients, and we are concerned that the Authority may be used

as a vehicle of personal vengeance. It may be that with the wisdom of hindsight

Mr Gollins' comment was not totally balanced (but we note he is engaged, and

known by the audience, to be a controversial commentator); but we do not believe

he, nor the station, has breached section 4 given the surrounding circumstances.

Mr Joseph does not come to the table with clean hands; and this matter will be

addressed by the District Court in due course.

Further Correspondence

The correspondence in the following months is canvassed in the Appendix. By way of

a brief summary, Mr Joseph's solicitors invited the Authority to exercise its powers in

the Broadcasting Act and to require the broadcaster to supply to the Authority, first, the

written information which would substantiate the comments (noted above) in the

broadcast about their client's involvement with the Satan's Slaves, and secondly, the

sworn statements which justified the reference to previous victims. As an indication of

the questionable accuracy of all the comments in the broadcast, a fax from the Porirua

Police was attached in which they denied ever speaking to Mr Gollins about Mr

Joseph's possible gang involvement.

The broadcaster supplied some information but none of the specific matters requested

by the complainant's solicitors and, following an exchange of letters, the matter was

deferred pending Mr Joseph's trial. During the exchange of letters, the Authority was

advised that the defamation claim by Mr Joseph against Capital FM was the subject of

negotiations between Mr Joseph's and the broadcaster's solicitors.

Following the trial in December which received reasonably full coverage in both The

Dominion and the Evening Post, Mr Joseph was convicted and fined $500. His

solicitors advised the Authority:

By the end of the trial, the Crown's case was that Mr Joseph had pushed Mr

Gollins and for this and this only was Mr Joseph found guilty and convicted of

assault on Mr Gollins. It will be apparent to the Authority that the Court's

summary of facts surrounding the incident differs markedly from the Police

summary supplied to the Authority by Capital FM Limited in the latter's letter of 1

November 1995 and from the version given by Mr Gollins in his comment on the

radio.

Mr Joseph has filed in the Court of Appeal an appeal against the conviction and

sentence.

They repeated their request to the Authority that it exercise its powers to obtain specific

information from the broadcaster. On behalf of the broadcaster, Nicholas Browne

(barrister) declined to make the material available, observing:

All of the documents and information which Mr Joseph seeks disclosure of

attracts either Media and Privacy Act 1993 privilege or Legal Professional and

Privacy Act 1993 privilege and therefore all documents and information sought by

Mr Joseph cannot be compulsorily disclosed to either the Broadcasting Standards

Authority or Mr Joseph.

As noted above, this correspondence is fully documented in the Appendix.

The Authority's Ruling

The Authority has before it a complaint that the commentary broadcast by The Breeze on

9 May 1995 breached the standards relating to good taste and decency and privacy.

Under s.4(1) of the Broadcasting Act 1989, broadcasters are required to maintain

standards which are consistent with:

(a) The observance of good taste and decency and ...

(c) The privacy of the individual.

Some matters are not in dispute. Following an altercation between Mr Gollins, a

cyclist, and Mr Joseph, a motorist, in October 1994, both were charged with criminal

offences. After pleading guilty to intentional damage, Mr Gollins was discharged

without conviction and, after pleading not guilty, Mr Joseph was convicted of

assaulting Mr Gollins and was fined $500.

The incident was dealt with by Mr Gollins in an opinion piece broadcast on The Breeze

on 9 May 1995 shortly after his Court appearance. His comments are not in dispute.

He was highly disdainful of the press reporters and his allegations about the driver are

transcribed on pages 3–4 above. Given the newspaper coverage in Wellington of Mr

Gollins' court appearance in which Mr Joseph was named, the Authority accepts that

the identity of the driver would be easily ascertained by a listener to the broadcast.

Further, Mr Joseph's solicitors' claim that he was readily identifiable was not contested

by the broadcaster. Whether or not the comments were accurate is the basis of the

complainant's argument that the broadcast contravened the good taste and decency

standard.

There is a difference of opinion beyond the accepted facts outlined, especially in regard

to the allegations about Mr Joseph and his activities. Focussing on its role as an arbiter

of complaints about broadcasting standards, the Authority concludes that it is not the

appropriate forum at which the factual disagreements which have arisen in this case

should be resolved. It notes that this aspect of the complaint does not raise a matter of

principle within the broadcasting environment. It is, as pointed out, a factual

disagreement which is the subject of other legal discussion. In all these circumstances,

the Authority declines to determine that aspect of the complaint.

Despite the conclusion on the factual dispute, the Authority intends to determine the

aspect of the complaint which alleges a breach of privacy. This aspect gives rise to a

matter of principle.

The use of the airwaves to deal with a matter which arises from a personal experience

on the part of the broadcaster is an issue which has come before the Authority in two

recent cases (Decision Nos: 1996-004–1996-006 and 1996-026–1996-027). As a

result of dealing with the matters raised in these decisions, the Authority is giving

consideration to including these points formally in the privacy principles applied when

determining a complaint which alleges a breach of s.4(1)(c) of the Act.

The Authority acknowledges that some of the most compelling radio commentaries arise

from the personal experience of the commentator. Nevertheless, these experiences can

be used in a number of ways. Because of the inappropriate way in which broadcasters

occasionally use these experiences, the Authority has developed the principle that it is a

breach of privacy under the broadcasting standards for a broadcaster to use the public

airwaves to abuse and denigrate an identifiable person. A broadcast which does so and,

in addition, is based on a personal dispute between the broadcaster and the identifiable

person, exacerbates the breach should it be found to occur.

On this occasion, as decided above, the broadcast referred to an identifiable person.

The comments about that person (on pages 3–4) were denigratory. Accordingly, the

Authority concludes the privacy principle was breached. Further, as the broadcast dealt

with a personal matter between the broadcaster and the complainant, it is the type of

breach which the Authority regards as being of the more serious type.

For the above reasons, the Authority upholds the complaint that the

broadcast of a commentary on The Breeze by Capital FM Ltd on the 9

May 1995 breached s.4(1)(c) of the Broadcasting Act 1989.

It declines to determine under s.11(b) of the Act the complaint that the

same broadcast breached s.4(1)(a).

Having upheld a complaint, the Authority may impose an order under s.13(1) of the

Act. As it has upheld a breach of s.4(1)(c), the Authority may impose an Order for

compensation up to $5000 under s.13(1)(d).

In the decision, the Authority has described the breach as being of the more serious

kind. However, it also notes that the alleged breach of broadcasting standards is only

one aspect of the dispute between the complainant and the broadcaster. While it has

reached a determination on the aspect of the complaint involving broadcasting privacy

principles, the Authority does not consider that the imposition of an Order is appropriate

given the overall scope of the ongoing disagreement between the parties.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
28 March 1996

Appendix

Mr Joseph's Complaint to Capital City Radio Ltd - 6 June 1995

Through his solicitors (C J O'Regan, Arndt, Peters and Evans), Mr Sean Joseph of

Wellington complained to Capital City Radio Ltd about a comment piece from Mr Chris

Gollins broadcast by The Breeze on 9 May 1995.

The solicitors argued that some of Mr Gollins' remarks were defamatory and motivated

by malice. Noting that Mr Joseph was not named, the solicitors nevertheless said that it

was apparent from the comments that Mr Gollins was incensed by his appearance in

Court and not only had he launched into a tirade against reporters, but he had also

attacked their client who was readily identifiable. They wrote:

Our client considers that Mr Gollins has used an opportunity as a broadcaster on

your station to attack and denigrate our client and in allowing Mr Gollins to do

this, you have failed to comply with your obligations under Section 4 of the

Broadcasting Act 1989 to maintain in your programmes standards which are

consistent with inter alia:

(a) The observance of good taste and decency

(b) The privacy of the individual.

Capital City Radio Limited's Response to the Formal Complaint - 8 June

1995

In a letter dated 8 June 1995, the Independent Broadcasting Company (1990) Ltd

advised the complainant's solicitors that it had sold the station known as The Breeze to

the Frader Group late in 1994.

Further Correspondence

On the basis that Capital City Radio Ltd was the licensee on 6 June 1995 of the

frequencies used by The Breeze and that Capital City Radio was a wholly owned

subsidiary of Independent Broadcasting, the complainant's solicitors (in a letter dated

14 June) asked on what basis did Independent Broadcasting claim that it was not

responsible. Nevertheless, and without prejudice, they also complained to the Frader

Group Ltd.

On 19 June, Independent Broadcasting maintained that Frader Group was responsible

adding that it had remained registered as the licence holder as security pending final

payment.

In response, Mr Joseph's solicitors wrote to Independent Broadcasting on 28 June and

maintained that it remained responsible for the broadcast.

Mr Joseph's solicitors were advised on 27 July by another firm of solicitors (Heaney

Jones) that they had been instructed by Capital FM Ltd/More FM Group in respect of

the claim for defamation.

Mr Joseph's Complaint to the Broadcasting Standards Authority - 30

August 1995

On the basis that Capital City Radio Ltd - as holder of the frequency licence at the time

of the broadcast - had not responded to the complaint within 60 working days, Mr

Joseph's solicitors referred the complaint to the Broadcasting Standards Authority under

s.8(1)(b) of the Broadcasting Act 1989.

The solicitors also noted that the 80 working day time limit referred to s.9(2) of the Act

also expired on 30 August.

Further Correspondence

On receipt of the complaint, on 30 August 1995 the Authority wrote to Independent

Broadcasting (1990) Ltd to enquire why it had not responded to the complaint within

60 working days. It was advised by Independent Broadcasting on 8 September 1995

(since renamed Prospect Ltd) that Capital City Radio Ltd no longer had any interest in

the licence and that the Authority's letter had been sent to Frader Group.

On 19 September 1995, the Authority received a fax from Capital FM Ltd advising that

it accepted full responsibility for the alleged breach of the standards. It acknowledged

that the complaint had not been adequately attended to while the possibility of

defamation was being addressed. The chairman (Mr C J Thompson) wrote:

I apologise for the delay in response, which has arisen through a

misunderstanding by us; and not through any disregard of the Company's

obligations as a responsible broadcaster.

Capital FM Ltd's Response to the Formal Complaint - 6 October 1995

The Chairman of Capital FM Ltd (Mr C J Thompson) acknowledged that, as a result of

an internal misunderstanding, it had not responded to Mr Joseph's solicitor's complaint

within 60 working days. Accepting that the error was discourteous, Mr Thompson

regretted the breach and said systems would be put in place to prevent a recurrence.

As for the comment complained about, Mr Thompson denied that it had breached the

broadcasting standards. Specifically, he said that Mr Joseph's involvement with the

Satan Slaves motorcycle gang was a fact, that his trial for assault was to begin on 17

November, that he had already pleaded guilty to the careless use of a motor vehicle, and

that Mr Gollins held sworn statements about Mr Joseph's previous victims. Mr

Gollins, he added, was reluctant to release the statements for fear of retribution.

By way of "background information", Mr Thompson made three points.

First, he stated that "Gollins Comments" had been broadcast by various radio stations in

Wellington since 1979. They were meant to be provocative and, Mr Thompson added,

he was not aware of any complaint or legal challenge since 1991 when Mr Gollins

joined More FM. Mr Gollins, he maintained, had established his bona fides as a

commentator. Secondly, the unfair print media coverage of his trial had provided Mr

Gollins the motivation to prepare the broadcast complained about. He had been

discharged without conviction while the Police were bringing serious charges against

Mr Joseph. Mr Joseph's complaint, he claimed, appeared to be based on malice.

Thirdly, Mr Gollins could check contentious pieces with solicitors but he had not felt it

was necessary before the broadcast on 9 May.

Mr Thompson concluded:

It would appear that this complaint is an extension of a personal dispute between

solicitors and their clients, and we are concerned that the Authority may be used

as a vehicle of personal vengeance. It may be that with the wisdom of hindsight

Mr Gollins' comment was not totally balanced (but we note he is engaged, and

known by the audience, to be controversial commentator); but we do not believe

he, nor the station, has breached section 4 given the surrounding circumstances.

Mr Joseph does not come to the table with clean hands; and this matter will be

addressed by the District Court in due course.

Mr Joseph's Request to the Authority - 25 October 1995

Mr Joseph's solicitors responded to the broadcaster's comment by inviting the

Authority to exercise its powers in s.12 of the Broadcasting Act to require Capital FM to

supply the following information under s.4C of the Commissions of Inquiry Act 1908.

First, the details relating to the police report about Mr Joseph's involvement with the

Satan's Slaves and, secondly, the sworn statement on which the commentator based his

remarks about "previous victims".

Four reasons were given for the request which focussed on the following (written)

statement from Capital FM:

Mr Joseph's involvement with the Satan's Slaves Motorcycle Gang is evidently

factually based; and can be confirmed by Mr J Billington, Mr Gollins' solicitor, a

sworn statement from an unrelated party, and enquiry to NZ Police.

As the first reason for the request, the solicitor enclosed a fax from the Prosecutions

Section of the Kapi Mana Police District Headquarters which stated:

The police have never advised Mr Gollins or his solicitor that Mr Joseph is

involved with or is an ex member of the Satan's Slaves motorcycle gang.

Secondly, as Mr Gollins said during the broadcast that the statement (about Mr Joseph's

gang involvement) had been produced in Court, it should be made available for

examination.

Thirdly, as the broadcaster's response to the complaint was disdainful and dismissive,

the material would enable the Authority to assess the broadcaster's response adequately.

Finally, while the broadcaster might regard the item as "just another in a long line of

Ôprovocative commentaries'", Mr Joseph considered the attack on his character to be a

serious matter. As evidence that he was highly regarded in the community, two

references were enclosed.

Mr Joseph's solicitors concluded:

Given the delay by Capital FM Limited in this matter, our client requests that the

Authority consider as soon as possible the application made in this letter. If the

Authority considers it appropriate to make the directions applied for in this letter,

our client submits a time limit of seven days for compliance by Capital FM

Limited and Mr Gollins would be appropriate having regard to the delays that

have occurred.

We have not given a full response in this letter to the letter from Capital FM

Limited to the Authority. Instead our client's response has been confined to those

matters relevant to his application for further information and production of the

statements. Upon the information and statements being supplied, our client will

be in a position to make a full response.

Further Correspondence

The Authority advised the solicitors (on 27 October 1995) that it was seeking the

broadcaster's comments but, on the material supplied, it was inclined to the view that

insufficient justification had been provided for the Authority to overrule the

Broadcasting Act's emphasis on informality and to use the powers in s.12.

Before receiving the broadcaster's response to the above specific request, Capital FM

supplied (on 1 November 1995) a summary of the facts prepared by the Police should

Mr Joseph plead guilty to common assault and intimidation. It noted that the trial for the

assault charge was set for 17 November and thus there would be pressure on the

Authority for a rapid resolution of the complaint.

Capital FM's Response to the Request - 8 November 1995

In a letter dated 8 November, Capital FM commented on the request for the Authority to

use its s.12 powers.

First, it said, contrary to the note from the Police, one of the comments made by the

Police on the day of the offence had inferred Mr Joseph's involvement with the Satan's

Slaves. Mr Gollins, it continued, was now taking legal advice about how to obtain that

information which was on the Police files. The broadcaster added:

However, I cannot see that the specific information sought in Item 1 is of any

relevance to the matter under review by the Broadcasting Standards Authority.

Surely the issue is whether Mr Gollins has fair grounds to make the statement,

and that can be determined by other sources. I would assume that there are other

issues at stake which may preclude NZ Police confirming to Mr Peters that they

had advised Mr Gollins' of any involvement.

On the second point - the sworn statements referring to Mr Joseph's previous alleged

intimidatory behaviour - the broadcaster said it had been prepared for court proceedings

on the basis that it would not be made available, because of possible retribution, to Mr

Joseph or his solicitor. The statements could be released on the same basis to the

Authority, or:

Alternatively, Mr Gollins would be able to obtain statements from other sources

that would confirm the credibility of any areas of concern to Mr Peters, but this

may take a little more time.

The broadcaster made the following observation:

I have never met Mr Joseph, and have no issue with him. However, it is clear

that various parties have rigorously opposing though obviously genuinely held

views of his character. Mr Peters presents some general character witnesses. Mr

Gollins can present some references from people that may present another side of

Mr Joseph. I'm not sure where that gets us.

The incident arose from an alleged assault - on which matter Mr Joseph has a trial

pending in the District Court. Mr Peters has also indicated that there may be an

allegation of defamation, and has sought a "without prejudice" settlement which

has not been accepted. We will defend any pursuance of that claim.

Suggesting that the matter could be deferred until the trial was completed, the

broadcaster said that enquiries confirmed that the complaint was an extension of a

personal dispute between Mr Joseph and Mr Gollins. It concluded:

However, our view is that the issue is a personal one of no interest to anyone

except Mr Joseph and Mr Gollins, and that the matter should lapse. There is so

much claim and counter-claim that this matter will never reach a conclusion to

satisfy Mr Joseph, and we sympathise with anybody that has to arbitrate.

We assume that Mr Peters is trying to enrich Mr Joseph's defamation claim or

assist the defence of the criminal law action.

Neither purpose is envisaged under the Broadcasting Act.

In another letter dated 9 November 1995, the broadcaster said that, on the basis of legal

advice, it was inappropriate for the Authority to continue its enquiries while they were

sub judice.

Further Correspondence

Mr Joseph's solicitors responded (on 8 November 1995) to the Authority's suggestion

that it was inclined not to use its powers to require the broadcaster to produce the

information specifically requested.

Referring first to the copy of police summary should Mr Joseph plead guilty, the

solicitors stated the charges were being defended and that the summary differed

considerably from the one read when Mr Gollins pleaded guilty to charges arising from

the same incident. A copy of that summary was enclosed and, the solicitors noted:

Even if the summary furnished by Capital FM Limited was evidence (and it is not)

its contents do not support the statements made in the broadcast to the effect that

our client was an ex Satan Slaves gang member and has a history of violent and

intimidatory conduct towards others.

Capital FM, the solicitors continued, had not produced evidence to justify these remarks

and they wrote:

We respectfully submit again, that this is an appropriate case for the Authority to

exercise its powers under Section 12 of the Broadcasting Act 1989. The

contention of Capital FM Limited that the comments made in the broadcast about

our client are true cannot be properly evaluated by the Authority without the

information, which our client seeks in his application, being produced to the

Authority. Our client also submits that the principles of natural justice do require

that the information be furnished.

As for the contention that the information was required for the defamation proceedings,

the solicitors said that that was a separate issue to the complaint and, they concluded:

In your letter you also enclosed copy letter dated 1 November 1995 from Capital

FM Limited. In the letter Capital FM Limited have commented that the Authority

can expect pressure for a rapid resolution because of the impending hearing of

charges against our client. Our client is not pressing for an urgent resolution.

Instead our client wishes the Authority to have all the information before it so that

our client's complaint can be properly determined under the Act.

The Authority sent each party a copy of the correspondence from the other. Mr

Joseph's solicitors were asked to advise the current state of the criminal proceedings in

which he was involved.

The broadcaster's response (dated 14 November) repeated its legal advice that it was

inappropriate for the intended witnesses to discuss their evidence. Nevertheless, it

commented:

Firstly, Mr Gollins was discharged without conviction in May 1995 on the charge

of intentional damage brought on the complaint of Mr Joseph.

Secondly, I am advised that the Summary of Facts apparently to be contested by

Mr Joseph in the District Court hearing was prepared by an off-duty police

officer, who I am advised was a witness.

It concluded:

We reiterate our request that the Authority's determination on all matters relating

to this complaint should be reconsidered after the conclusion of the continuing

District Court charges.

Mr Joseph's solicitor's response was dated 17 November 1995 and it began:

Our client Mr Joseph has been charged with three offences as a result of the

incident involving him and Mr Gollins on 6 October 1994. The charges are

common assault, use of threatening language and careless driving. The trial by

jury, of the assault charge is to take place on 13 December 1995. No date has

been set for the other two charges.

They proceeded to deal with a number of points in the letters from the broadcaster.

First, they maintained:

The pending trial of the assault charge does not preclude Capital FM Limited from

making any statements to the Authority nor the Authority determining our client's

complaint. We draw to the Authority's attention that this concern did not prevent

Mr Gollins from making adverse comments about our client on 9 May 1995 nor

the broadcaster from broadcasting these comments. We do not see how the

Authority's decision can affect the outcome of the trial. Different issues are

involved. They do not overlap.

Referring to the statements in Capital FM's letters, they said that the broadcaster had not

provided evidence to substantiate the comments in the broadcast. They maintained that

the standards issue was wider than whether Mr Gollins had fair grounds to make his

statement. A further reference from a former Wellington City Councillor was attached

and, they observed:

Capital FM Limited's offer has offered (sic) in its letter of 8 November 1995 to

have Mr Gollins obtain statements about our client from other sources. One can

only conclude from this that the company now recognises that it cannot justify

what was said about our client on its stations and so now proposes to embark on a

expedition to dredge up some much in an effort to justify. It is trying ex post

facto to justify itself and/or Mr Gollins.

The solicitors also referred to the defamation case in which the broadcaster's Counsel

had made "without prejudice" an offer of settlement. The correspondence relating to

that matter was enclosed.

As for the broadcaster's argument that the complaint should be allowed to lapse as it

was of no interest to anyone but Mr Gollins and Mr Joseph, the solicitors commented:

... it is apparent from this statement that Capital FM Limited does not appreciate

that it is responsible in law for the broadcast and that it has obligations concerning

what is broadcast over its radio stations. ...

The comments made by Mr Gollins and broadcast by Capital FM Limited are of

concern to our client. They have been the source of considerable embarrassment

to our client and his family. Our client is entitled to exercise his rights under the

Broadcasting Act. Further it is of course in the general public interest that

broadcasters adhere to all times to the standards required of them under the Act.

That is inter alia the very justification for the establishment of the Authority and

the powers conferred on it to ensure that those standards are observed.

Arguing that Capital FM should not be allowed more time to consult its solicitors, they

concluded:

We take the view, perhaps unkindly, that Capital FM Limited is doing its utmost

not only to fob off the complaint but also to minimise the seriousness of the

complaint. It has not yet faced up to the issue of its responsibility as a

broadcaster.

On 24 November 1995, the Authority advised the parties that, in view of s19A of the

Broadcasting Act 1989, it did not accept the broadcaster's submission that its

investigation should cease on the grounds that the matter was sub judice. Nevertheless,

in view of the nearness of the date of Mr Joseph's trial (13 December), it intended to

defer its decision on the matters before it until after the trial.

The Authority received a copy of a letter to Mr Joseph's solicitors (dated 6 December

1995) from Nicholas Browne, barrister, acting on the broadcaster's behalf on the

defamation claim, in which he argued that they (the solicitors) had no authority to

forward copies of the "without prejudice" defamation negotiations to the BSA. The

solicitors' reply to Mr Browne (dated 7 December 1995) was also copied to the

Authority in which they observed:

Regardless of whether you act for Heath Insurance and/or Capital FM Limited,

the correspondence was disclosed by you and/or Heath Insurance to Capital FM

Limited. Accordingly, you and Heath Insurance must accept consequences of

Capital FM Limited misrepresenting to the Broadcasting Standards Authority not

only the nature of that correspondence but also, as now appears to be the case, the

directions given by Heath Insurance concerning settlement. We do not accept that

we in any way acted wrongfully. Further, although we were not under any

obligation to do so, we gave you notice in our letter of 14 November 1995 that we

intended to send a copy of the correspondence to the Broadcasting Standards

Authority.

Mr Joseph's Further Request - 29 January 1996

On 29 January 1996, the Authority sought comment on the outcome of the trial and Mr

Joseph's solicitors advised (14 February 1996):

By the end of the trial, the Crown's case was that Mr Joseph had pushed Mr

Gollins and for this and this only was Mr Joseph found guilty and convicted of

assault on Mr Gollins. It will be apparent to the Authority that the Court's

summary of the facts surrounding the incident differs markedly from the Police

summary supplied to the Authority by Capital FM Limited in the latter's letter of 1

November 1995 and from the version given by Mr Gollins in his comment on the

radio.

Mr Joseph has filed in the Court of Appeal an appeal against the conviction and

sentence.

In respect to the complaint, they wrote:

In paragraph 2 of its letter dated 8 November 1995 and in relation to the advice

from the Police that the Police had not advised Mr Gollins of any involvement by

Mr Joseph in the Satan's Slaves motorcycle gang, Capital FM Limited informed

the Authority that "Mr Gollins may need to renew his contacts; as one of his

reference sources was an inference from the Police on the day of the offence". In

addition to the information and particulars set out in our letter of 25 October 1995,

our client requests that Capital FM Limited and Mr Gollins be required to disclose

the names of all Mr Gollins' "contacts" and "all his reference sources".

They also included a report from the "Evening Post" of 21 December 1995 on the

sentencing of Mr Joseph.

Capital FM's Further Response - 22 February 1996

The Authority forwarded a copy of the above letter to the broadcaster and received a

reply from Nicholas Browne, barrister, who had been instructed by Heaney Jones.

Briefly reviewing the history of the complaint, Mr Browne asked the Authority to

consider the following matters before determining the application from Mr Joseph's

solicitors.

First, it asked pursuant to what provision did the Authority have the jurisdiction to make

the order requested.

Secondly, as the Police declined to release information about Mr Joseph under the

Official Information Act without Mr Joseph's permission, he requested a direction to Mr

Joseph from the Authority requiring him to consent to such disclosure.

Three matters were raised as the third point. It was claimed that the documents sought

were privileged from disclosure pursuant to either media confidentiality privilege, legal

professional privilege, or Privacy Act 1993 privilege.

Fourthly, overall, he wrote:

All of the documents and information which Mr Joseph seeks disclosure of

attracts either Media and Privacy Act 1993 privilege or Legal Professional and

Privacy Act 1993 privilege and therefore all documents and information sought

by Mr Joseph cannot be compulsorily disclosed to either the Broadcasting

Standards Authority or Mr Joseph.

Mr Browne concluded:

Finally, notwithstanding the foregoing, Capital FM Ltd does intend adducing

evidence to the Broadcasting Standards Authority in respect of the complaint after

it has determined Mr Joseph's application for disclosure and Capital FM Ltd's

cross application for a direction that Mr Joseph consent to New Zealand Police

disclosure of official information, and disclosure (if any) has been made in terms

of the Broadcasting Standards Authority's determination in respect of such

application and cross application.

Further Correspondence

In a letter dated 26 March 1996, at the Authority's request the complainant's solicitors

forwarded reports from the Evening Post and The Dominion dated 5 May 1995 in

which it was reported that Christopher Gollins was discharged without conviction on

a charge of wilful damage. In each report, it was noted that Sean Norman Joseph

faced charges arising from the incident.

The solicitors also replied to the broadcaster's barrister and argued that the Authority

should request the information sought.