BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The conviction of Gay Oakes for the murder of her de facto husband, Douglas

Gardner, was one of the issues discussed on Radio Pacific talkback, hosted by George

Balani, between 9.00am–12 noon on 29 March 1995.

Ms Johnston, sister of the deceased, complained to Radio Pacific Ltd about the bias

evident in one specific comment made by the host between 11.00–12 noon. She said

that he had made a statement to the effect, when referring to the fact that Mr

Gardner's body had been buried in the garden, "Just think what good veges could be

grown with all that rot under the ground".

Explaining that a tape of the alleged comment was unavailable because of the time at

which the tape was turned, Radio Pacific nevertheless denied that the specific

comment was broadcast. Dissatisfied with Radio Pacific's response, Ms Johnston

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 listened to part of the talkback session during

which the comment was claimed to have been made although the specific remark

complained about was not on the tape. They have also read the correspondence

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

complaint without a formal hearing.

The conviction of Gay Oakes for the murder of her de facto husband, Douglas

Gardner, was a matter of public discussion in March 1995. Ms Oakes had advanced

unsuccessfully a "battered wife syndrome" defence.

The conviction was one of the topics discussed on Radio Pacific's talkback during the

session from 9.00–noon (host: George Balani) and in the early afternoon (host: Paul

Henry) on 29 March. From the tapes supplied by Radio Pacific, it was apparent that

the morning host's sympathy rested with Ms Oakes while the afternoon host took

the view that the conviction was appropriate in the case of a premeditated murder.

The evidence presented during the trial disclosed that after Mr Gardner had been

murdered, he had been buried for about a year in the family's garden. Ms Johnston

complained to Radio Pacific that during the morning session the host had commented

(or used words to the effect):

Just think what good veges could be grown with all that rot under the ground.

Ms Johnston maintained that the comment was unfair to the family which was still

grieving and, in addition, revealed bias on the host's part.

Because of some misfiled tapes, Radio Pacific did not respond to the substance of the

complaint for some ten weeks. Later, having located the tapes of the broadcast

complained about, Radio Pacific was unable to find any record of the specific

comment which Ms Johnston claimed had been made. Nevertheless, it acknowledged

that, contrary to the station's procedures, the tape had been turned over during a call

and the tape began again with the host remarking that the previous caller's comments

were "a bit strong". However, there was no record of that call.

Consequently, while not being able to deny categorically that the remark complained

about had been made, Radio Pacific was adamant that the host had not used the words

Ms Johnston considered offensive.

When she referred the complaint to the Authority, Ms Johnston recalled Pacific's

earlier error with the tapes and suspected that the call she was concerned about had

been deleted from the tape which had been sent to her. Radio Pacific vehemently

denied that allegation. It acknowledged the errors in supplying the wrong tape

initially and turning the tape in dispute during a broadcast but it steadfastly denied

that the host had used the phrase complained about.

In its report to the Authority, Radio Pacific included an affidavit from the host of the

session from 9.00–12 noon (George Balani) in which he referred to the phrase

complained about and wrote:

I swear that I never used the words complained of or even similar. I consider

that such comments would have been offensive and distasteful. I certainly never

made them and I am advised that the tapes have no record of this either. My

producer Brian Tucker, an experienced broadcaster, has told me he has no

recollection of such words.

He added:

I recall the programme as being one in which various callers expressed strong

opinions over the Gay Oakes trial. This was a controversial issue which I had

some involvement in through being host of a panel discussion on CTV. I was

generally aware of those people who were supportive of Gay Oakes and I

considered that a number rang the programme that day to ensure that their point

of view was aired. Throughout, I sought to balance those views both by my

own comments and taking other callers.

Radio Pacific assessed the complaint under standard R9 of the Radio Code of

Broadcasting Practice which requires broadcasters:

R9  To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature, making

reasonable efforts to present significant points of view either in the same

programme or in other programmes within the period of current interest.

In view of the matters raised by Ms Johnston, the Authority has also considered the

complaint under standard R2. It requires broadcasters:

R2  To take into consideration currently accepted norms of decency and good

taste in language and behaviour, bearing in mind the context in which any

language or behaviour occurs.

Radio Pacific's response to the standard R9 complaint was similar to the second

statement from the host's affidavit (noted above). The affidavit also accepted that the

phrase, if used by a host, would have been offensive.

In determining the complaint, the Authority was in the most unsatisfactory position

of not having a tape of the full broadcast between 11.00am–12 noon on 29 March.

Nevertheless, the Authority accepts Radio Pacific's denial of the claim that the

comment, whether made by caller or host, was deliberately deleted. It notes Radio

Pacific's avowal that its credibility would certainly be tarnished – if not substantially

damaged – if it was discovered to be tampering with the tapes. The Authority accepts

that failure to comply with Radio Pacific's in-house rules was the reason for the

missing segment on the tape on this occasion.

Without an audio tape, the Authority was required to decide from the correspondence

whether the comment was made and, if so, whether it had been made by the host. In

deciding these matters, the Authority took into account, first, that Ms Johnston did

not claim in her letters to have heard the broadcast or the comment herself and,

secondly, the host's attitude to the issue as revealed in the broadcast at 6.00pm on 29

March on Canterbury Television, referred to by the host in his affidavit, and the

subject of another complaint by Ms Johnston to the Authority.

Taking these matters into consideration, the Authority reached the following

conclusions. First, principally in view of the contents of the host's affidavit and his

remarks that the comments from one caller were "a bit strong", the Authority

accepted that the host did not make the comment complained about or use words to

that effect. Secondly, the comment, or words to that effect, could have been made by

a caller.

The Authority then applied these conclusions to the standards allegedly breached.

Dealing first with the standard R2 requirement for good taste, the Authority agreed

with the host's affidavit that the alleged remark was offensive and, if made by a host,

it would have been in breach. However, other considerations have to be taken into

account when deciding if it was in breach when made by a caller (as opposed to a

host) to talkback. The Authority accepts that talkback deals with controversial issues

on which callers hold strong opinions. Nevertheless, while the boundaries of good

taste and decency can be challenged, that does not mean that callers can step over

them. Each host has the task to ensure that the borders are not transgressed.

With regard to the comment on this occasion, the Authority decided that, if it had

been made by a caller, it was at the edge of the type of comment which was acceptable

on talkback. If it was referred to on the tape supplied, it was followed by the host –

and a subsequent caller – describing it as "a bit strong". In view of both these

responses, the Authority was prepared to accept that, given an opinionated talkback

environment, it had not contravened standard R2.

The question of balance on talkback is controversial. The Authority has not been

prepared to accept that open lines in themselves are sufficient to ensure compliance

with standard R9. While it does not expect talkback hosts not to have an opinion on

the controversial issues which are discussed, it does expect hosts to acknowledge that

they are the repetitive and dominant voice during a broadcast. Accordingly, they have

a responsibility under standard R9 to ensure that different perspectives of an issue are

lucidly advanced. The Authority does not prescribe the use of any particular method

- eg adopting the role of devil's advocate or seeking out to spokespeople on an issue

being discussed – but the standard, for which it is responsible, requires that, overall,

balance is achieved.

Although it has not listened to the full session from 9.00am–12 noon on 29 March,

the Authority accepts that the host's sympathy for Gay Oakes was apparent.

While acknowledging these matters and the host's approach, the Authority did not

consider that the balance requirement had been contravened. In reaching that decision,

it believed two matters were of particular importance. First, callers spoke both for

and against Ms Oakes and, on the whole, the host gave them similar opportunities to

express their views and was not dramatically dissimilar in his response to them.

Secondly, the first call taken by the host who began at 12 noon referred to Ms Oakes.

Because it was the topic raised by the first caller, the Authority accepted that, despite

the change of host, in this particular instance that call was within "the period of

current interest" to use the phrase in standard R9. The afternoon host's attitude to

the case was quite different and he explained clearly that he felt that Ms Oakes'

conviction was the correct legal response to a premeditated murder.

In view of these matters, the Authority considered that the broadcast had not

breached standard R9.

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

Signed for and on behalf of the Authority

Judith Potter
Chairperson
12 October 1995

Appendix

Ms Johnston's Complaint to Radio Pacific Ltd - 5 April 1995

Wendy Johnston of Christchurch complained to Radio Pacific Ltd about the talkback

session on 29 March (host: George Balani) which had referred to her deceased brother

and his upbringing. Her brother, Douglas Gardner, was murdered by his de facto wife

Gay Oakes. Mr Gardner's body was buried in the garden and, Ms Johnston stated,

the host commented:

Just think what good veges could be grown with all that rot under the ground.

Ms Johnston said that the host, by agreeing with a caller who praised Ms Oakes'

actions, had ridiculed a family member for whom they were still grieving. The host,

furthermore, she said, had not been unbiased in his treatment of callers. In addition,

she wondered why the matter was being discussed at all as an appeal was pending.

Radio Pacific's Initial Response to the Formal Complaint - 13 April 1995

Radio Pacific advised Ms Johnston that it was unable to locate the call referred to and

the time suggested - between 11.00am - 1.00pm - and it enclosed copies of the

relevant tapes for Ms Johnston.

Radio Pacific advised that while one host was pro Gay Oakes, the following one felt

that she deserved to be punished for the premeditated crime. It continued:

Both were hosts expressing their own views on what has been a highly

publicised and controversial trial.

Nevertheless, Radio Pacific added, if the words complained about were said then the

complaint would be upheld and it concluded:

Please don't treat this letter as a formal response to your complaint. At this

stage Radio Pacific is supplying you with copies of the tapes so that you can

then listen and come back to us. If you still feel from listening to the two hours

that your late brother has been dealt with unfairly then I promise you that we

will address that issue.

Further Correspondence

Ms Johnston's next step, on 13 July 1995, was to refer the complaint to the

Broadcasting Standards Authority. Noting that her brother had been missing for 14

months before his body was found and that the prosecution of his de facto had taken a

further six months, Ms Johnston said that the time had been very traumatic for the

family. The comments of the Pacific talkback host had added to the grief.

Expressing doubt that Radio Pacific had sent her the tapes for the 29 March as there

was no mention at all of Gay Oakes, she considered that Radio Pacific had been

neither truthful nor helpful to her.

As Radio Pacific had not responded formally to the complaint, the Authority sent the

material to it and suggested that a formal response was now appropriate.

In a letter to Ms Johnston dated 19 July, Radio Pacific said that it had now located

the correct tapes of the broadcast complained about. Through an administrative error,

it added, they had been filed in the wrong place. It suggested to Ms Johnston that she

should listen to the tapes and then to decide whether she wanted to proceed with her

complaint.

Having listened to the tapes, on 24 July Ms Johnston advised Radio Pacific that she

had decided to proceed with the complaint. She had decided to do so, she said,

because the comment about which she complained was not on the tape.

I therefore conclude that this call has been removed from the tape that Radio

Pacific sent me. I also suspect that this call was the one that I first complained

about. I am not at all satisfied with the response that I have received from Radio

Pacific.

Radio Pacific's Response to the Formal Complaint - 2 August 1995

Radio Pacific began:

Radio Pacific absolutely and completely rejects the allegation that a "call had

been removed from the tape". It is inconceivable that anyone at Radio Pacific

would interfere with the tape; such behaviour would be regarded in the most

serious light by the radio station, and I am sure by the Broadcasting Standards

Authority. Radio Pacific does not engage in the business of editing tapes for the

sake of complaints. The station's reputation and the company's credibility are

far too important to even contemplate such an act.

Explaining that tapes were turned over half way through each hour, usually during

commercial breaks, Radio Pacific acknowledged that the panel operator appeared on

this occasion to have changed the tape during the programme and that he had been

reprimanded.

Radio Pacific stated that it had checked out the complaint with the talkback host who

was adamant that the comment complained about (or words to that effect) had not

been used. Moreover, he was prepared to sign an affidavit in confirmation. Radio

Pacific added:

He said that during that time there were a number of calls expressing strong

opinions over the Gay Oakes trial and that it had been the subject of a panel

discussion on CTV as well. George [Balani] advises that he could tell that Gay

Oakes supporters were ringing the programme and for this reason he was

attempting to keep a balance.

Radio Pacific's Brent Impey concluded:

Radio Pacific is at fault for failing to send you the correct tapes in the first place

and for then misplacing the correct ones. For that we apologise. It was due to a

misfiling by the librarian who was then off work for some weeks due to ill

health. Radio Pacific also accepts that the panel operator changed the tape at an

inappropriate time and action has been taken internally to deal with that.

As far as your allegation is concerned, Radio Pacific denies that George Balani or

any other hosts used the words complained of or similar.

Finally, I would like to express my personal regret for the administrative errors

at this end which have meant that this matter has taken so long to reach this

point. Your complaint has led to a review of procedures both in terms of

checking copies of tapes that are sent to complainants, the filing and security of

tapes and the taping of live broadcasts.

Ms Johnston's Complaint to the Broadcasting Standards Authority - 15 August

1995

Dissatisfied with Radio Pacific's response, Ms Johnston referred her complaint to the

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

As there was no record on the tapes she had received from Radio Pacific that the host

had tried to achieve balance, she did not accept that balance had been attained. On the

contrary, she maintained, Radio Pacific had "deliberately tried to cover up for Mr

Balani".

Radio Pacific's Response to the Authority - 21 August 1995

In its report to the Authority, Radio Pacific accepted that it sent the wrong tapes to

Ms Johnston initially. It "absolutely rejected" her claim that a call had been removed

from the tape.

Radio Pacific noted that the complaint alleged that the programme, broadcast

immediately after the court decision on a controversial case involving Gay Oakes, was

unbalanced. As the host was aware that Ms Oakes' supporters were calling that

morning, Radio Pacific stated that he had attempted to keep a balance. It added:

As far as the George Balani programme is concerned, it is part of the cut and

thrust of talkback radio. George Balani held views on the subject and in our

opinion these were expressed in a fair and balanced fashion.

In view of Ms Johnston's allegations, Radio Pacific enclosed an affidavit from the

host in which he swore that he had never used the words complained about or

anything similar. His affidavit continued:

I consider that such comments would have been offensive and distasteful. I

certainly never made them and I am advised that the tapes have no record of this

either. My producer Brian Tucker, an experienced broadcaster, has told me he

has no recollection of such words.

Ms Johnston's Final Comment - 4 September 1995

Expressing her strong disagreement with Radio Pacific's explanation, Ms Johnston

maintained that the offending comment had been made - probably as the tape was

being turned in view of the host's remark as the tape began he remarked that the last

call was a bit strong.