BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A One Network News item on 30 November dealt with the DNA Testing Bill before

Parliament which would set up a nation-wide DNA databank and authorise DNA

blood tests – by force if necessary – from violent crime suspects. It reported that

DNA testing had been crucial in many cases and referred to the conviction of Lance

Harbour for the abduction and violation of a child.

Mr Harbour complained to Television New Zealand Ltd, the broadcaster, that as the

DNA evidence in his case had not positively confirmed that he was the offender, the

item was misleading and unfair to him.

Pointing out that the DNA evidence in the particular case reduced the number of

potential offenders in New Zealand to 27 which, when combined with the other

evidence, was sufficient to secure a conviction, TVNZ denied that the broadcast

breached the nominated standards. Dissatisfied with TVNZ's decision, Mr Harbour

referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

For the reasons below, the Authority declined to uphold the complaint.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaint without a formal hearing.

In a news item which dealt with the DNA Testing Bill before Parliament broadcast

both on One Network News and the late edition, TVNZ commented:

DNA testing has been crucial in countless convictions.

Like that of Lance Harbour, who abducted and sexually violated a toddler near

Hastings last year.

Mr Harbour complained to TVNZ that the item's reference to him was misleading

when it suggested that he had been convicted as a result of the DNA evidence. He

maintained that the DNA tests produced during his trial were negative and that the

conviction was based on circumstantial evidence.

TVNZ assessed the complaint under standards G4 and G14 of the Television Code of

Broadcasting Practice. The first requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any

programme.

The other reads:

G14 News must be presented accurately, objectively and impartially.

Explaining that the item reported the contents of the Bill, TVNZ said that it included

the above information as background. It wrote:

It is TVNZ's view that it was appropriate to link DNA with a high-profile case

which the viewing audience would recognise to emphasise the procedure's

importance in obtaining criminal convictions.

Your name was not used lightly. Before it was included in the script your case

was identified as one in which the prosecution made much of DNA tests in

securing your conviction.

It accepted that circumstantial evidence was very relevant but pointed out that:

... there seems to be no doubt that the DNA test did not exclude you as a

suspect. Instead it produced a statistic which said that you were 130,000 times

more likely to have committed the crime than anyone else. While the

prosecution acknowledged that, statistically, there could be 27 people in New

Zealand having an identical DNA profile with yours, the DNA evidence became

overwhelming when combined with your local knowledge, and with the "DNA

fingerprint" found at the point you are thought to have entered the house.

In his referral to the Authority and his subsequent correspondence, Mr Harbour not

only insisted that the DNA evidence did not positively prove that he was the offender

but he also raised questions about the technical reliability of the DNA tests used in his

case. TVNZ said that the item did not allege that Mr Harbour was positively

identified by the DNA test but maintained that the DNA evidence was central to his

conviction. Although Mr Harbour referred to the Appeal Court, he also said that he

had another appeal underway. Whatever the situation regarding appeals, the

Authority is of the view that the courtroom, not the Authority, is the appropriate

place to rule on Mr Harbour's grievances about the DNA tests used in his case.

In his last letter to the Authority, Mr Harbour wrote:

I stated to TVNZ that the use of my name with the DNA testing bill has given

some the impression my conviction was based solely on DNA.

What I seek is TVNZ to justify the use of my name with facts or admit they

were wrong and apologise. Nothing more. Nothing less.

In view of the explicit nature of Mr Harbour's complaint contained in this letter, the

Authority's task was to decide whether the item had stated or implied that Mr

Harbour's conviction was based solely on the DNA testing. In considering the matter,

the Authority noted that in the item, TVNZ had described the DNA evidence as

"crucial". The definition in the Concise Oxford Dictionary of "crucial" reads decisive,

critical or very important. The definition of "solely" is one and only, single or

exclusive.

In deciding the complaint, the Authority noted that it is apparent from the

correspondence from both TVNZ and Mr Harbour that it would have been factually

incorrect had the item described the DNA evidence as "solely" responsible for Mr

Harbour's conviction.

As issues of fact during a trial before a jury are decided by the jury in secrecy, it is not

possible to state precisely the influence of any particular piece of evidence. On the

limited information available to it however, the Authority decided that it was not

unreasonable for the item to suggest that the DNA evidence was "crucial" in securing

Mr Harbour's conviction. It decided, therefore, that the use of the word "crucial" did

not breach the standards.

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

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
12 April 1995

Appendix

Mr Harbour's Complaint to Television New Zealand Ltd - 21 December 1994

Mr Lance Harbour complained to Television New Zealand Ltd about an item

broadcast on One Network News, and the late edition of that programme, on 30

November.

The item reported details of the proposed DNA testing legislation and Mr Harbour

stated that the reference to his trial was misleading when it stated that his conviction

was based on DNA evidence.

Referring to two distinct tests which had led to different results in his case, Mr

Harbour questioned the reliability of the evidence advanced during his trial based on

the results of the tests.

Furthermore, he added, the results of the DNA tests produced as evidence were

negative and, as was apparent from the transcript of the trial, his conviction had been

based on circumstantial evidence.

In another letter to TVNZ dated 5 January 1995, Mr Harbour said that his conviction

was based on circumstantial evidence - not DNA testing - and that it was stated in the

Court of Appeal that the use of his name in this matter on the news item was a

question of concern.

TVNZ's Response to the Formal Complaint - 20 January 1995

Assessing the complaint under standards G4 and G14 of the Television Code of

Broadcasting Practice, TVNZ said the item had discussed some of the aspects of the

controversial DNA Testing Bill. It continued:

In the course of conveying this information it was important to tell viewers

something of the background and it was in this context that your name was used.

The section of the transcript reads:

"DNA testing has been crucial in countless convictions.

"Like that of Lance Harbour, who adducted and sexually violated a toddler near

Hastings last year".

Arguing that it was appropriate to link DNA testing with a high-profile case but that

Mr Harbour's name had not been used lightly, TVNZ said that his case had been

identified as one in which the prosecution "made much of DNA tests in securing your

conviction".

TVNZ noted:

In studying your complaint, TVNZ has referred back to your trial and notes the

weight the prosecution placed upon the DNA results - when combined with the

knowledge you had of the victim's home and surrounds.

You may argue that this was circumstantial evidence - but there seems to be no

doubt that the DNA test did not exclude you as a suspect. Instead it produced a

statistic which said that you were 130,000 times more likely to have committed

the crime than anyone else. While the prosecution acknowledged that,

statistically, there could be 27 people in New Zealand having an identical DNA

profile with yours, the DNA evidence became overwhelming when combined

with your local knowledge, and with the "DNA fingerprint" found at the point

you are thought to have entered the house.

On the basis that the item did not say that the conviction was based solely on DNA

but did say that should the Bill be enacted Mr Harbour would have his profile

included in the national databank, TVNZ believed the report was neither inaccurate

nor unfair. It declined to uphold the complaint.

Mr Harbour's Complaint to the Broadcasting Standards Authority - 13

February 1995

Dissatisfied with TVNZ's response, Mr Harbour referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

He repeated the main point in his complaint to TVNZ that the DNA test did not

provide positive evidence of any illegal behaviour on his behalf. He emphasised that 1

in 130,000 or 27 people in New Zealand would have an identical DNA profile and he

wrote:

Television New Zealand pointed out the DNA test did not exclude me as a

suspect, it was clear in trial they did not obtain any positive match and show an

identical DNA profile with my blood and the blood found at the crime scene. It

was also made clear they could not say the blood belonged to me. My blood

was not the blood found at the crime scene.

Mr Harbour also referred to the other evidence - and a palm print in particular - and

said that there were a number of unanswered questions. He concluded:

What Television did not take into consideration was the DNA did not convict

me or exclude me or exclude the fact that I maintain my innocence and was home

with my wife and children the night in question.

TVNZ's Response to the Authority - 23 February 1995

When asked to comment on the referral, TVNZ said it had little to add. It reported:

We have no doubt, having studied the case during the initial investigation of Mr

Harbour's complaint that the DNA test results were a critical factor in the

prosecution securing the conviction of Mr Harbour for the kidnapping and

sexual violation of a three-year-old boy in Hawkes Bay. Specifically evidence

given in the High Court at Napier on the 12th and 13th of May 1994 by a DNA

testing authority, Mr Stephen Cordiner, was central to Mr Harbour being

convicted and sentenced to a lengthy term of imprisonment.

TVNZ said the case was used in the item because it was a high profile one and while

acknowledging that Mr Harbour challenged the prosecution's DNA evidence, wrote:

... but we submit the formal complaints procedure is not the proper forum for

him to seek a reopening of his case.

Mr Harbour's Final Comment to the Authority - 26 February 1995

Pointing out that his complaint was based on the fact that the DNA evidence at his

trial did not prove that he was the offender and that the other evidence was

unsatisfactory, Mr Harbour maintained that he was innocent. He said that he had

other evidence which he could not refer to as he planned to appeal. He concluded:

I hope this complaint is looked into with fairness and pray for the day the media

will stand back and let the innocent prove their innocence without having their

case broadcast all over television leading up to a trial.

Mr Harbour's Further Final Comment - 7 March 1995

As his letter of 26 February was written before receiving a copy of TVNZ's letter of

23 February, Mr Harbour wrote again to respond specifically to the later letter.

Mr Harbour repeated that he had complained to TVNZ as the item broadcast both on

One Network News and the late news had given the impression that his conviction

"was based solely on DNA".

That, he said, was incorrect and he now sought an admission from TVNZ that it was

wrong and an apology.