BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

"She wasn't a battered woman" Wendy Johnston said of Gay Oakes when the result

of Ms Oakes' unsuccessful appeal to the Privy Council against her conviction for

murder was announced. Ms Johnston is a sister of the man murdered by Ms Oakes

and the comment was included in an item on One Network News broadcast between

6.00–7.00pm on 7 February 1997.

On behalf of Women's Action for Justice, Ms Tighe Instone complained to Television

New Zealand Ltd that the comment was "blatantly incorrect". Judges in the High

Court and Court of Appeal had accepted that Ms Oakes was a battered woman.

Explaining that the comment was clearly Ms Johnston's opinion and that the item had

included other opinions, TVNZ declined to uphold the complaint. The Court's ruling,

it added, showed an open mind on battered woman's syndrome in this specific case.

Dissatisfied with TVNZ's decision because, she claimed, it confused the battered

woman's syndrome defence with the accepted fact that Ms Oakes was a battered

woman, Ms Instone on behalf of the Group referred the complaint to the Broadcasting

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

For the reasons below, the Authority declines 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

determines the complaint without a formal hearing.

Gay Oakes appealed her conviction for the murder of Douglas Gardner to the Privy

Council. Her counsel argued that the conviction should be quashed in view of the

defence of battered woman's syndrome. The appeal was unsuccessful, reported an

item on One Network News, and comments were included from Ms Oakes' counsel,

from Tighe Instone of Women's Action for Justice which deplored the result, and

from Wendy Johnston who is a sister of the late Mr Gardner. Ms Johnston

commented that Gay Oakes "was not a battered woman".

On behalf of Women's Action for Justice, Ms Instone complained to TVNZ that the

categorical statement was not correct. While she acknowledged that the Gardner

family was entitled to its opinion, she noted that judges in the High Court and the

Court of Appeal had acknowledged that Ms Oakes was a battered woman.

TVNZ assessed the complaint under standard G14 of the Television Code of

Broadcasting Practice which reads:

G14  News must be presented accurately, objectively and impartially

Arguing strongly that Ms Johnston's comment was an opinion she was entitled to

express, TVNZ suggested that the item might have been unbalanced had Ms

Johnston's view been omitted. TVNZ also observed that the Appeal Court did not

accept that Ms Oakes was suffering from battered woman's syndrome.

The relevance of this comment was questioned by Ms Instone when she referred the

group's complaint to the Authority. While the Court might have questioned the

applicability of battered woman's syndrome in this case, Ms Instone maintained that

the fact that Ms Oakes was a battered woman, despite Ms Johnston's statement, was

not in doubt for the judges in the High Court and Court of Appeal.

In its report to the Authority, TVNZ again emphasised that the comment was "clearly

an expression of Ms Johnston's opinion". In reply Ms Instone accepted that the

Gardner family was entitled to an opportunity to express an opinion. However, she

continued, "the law requires that such opinions ... be based on true facts". In the

present case the fact that Ms Oakes was a battered woman was indisputable in view

of the evidence.

The Authority nevertheless accepts, as public discussion exemplifies, that a

conviction following a criminal trial does not close off debate, first, as to the facts, and

secondly, as to the conclusions which can be drawn from those facts.

Indeed, it is with some irony that the Authority notes the complainant group

approach to the complaint and that a ruling from the Court is incontestable.. On the

one hand, in support of this stance, it agrees with the Court – as an unchallengeable

fact – that Ms Oakes was a battered woman. However, on the other hand, the group

disagreed strongly with the Court's ruling about the applicability of the battered

woman's syndrome defence.

In considering the group's argument that Ms Johnston's comment was advanced as a

statement of fact, the Authority accepts that it was advanced by Ms Johnston on that

basis. However, taking into account the other comments included in the item, it is

readily apparent that it was a fact in dispute and that Ms Johnston was expressing a

view on the disputed fact. That conclusion is in no doubt when it is considered that

the other people interviewed also advanced "statements of fact", and viewers were

told that Ms Johnston was speaking as a member of the murdered man's family.

In view of the range of opinions advanced in the item that discussed the dismissal of

Ms Oakes' appeal against her murder conviction, the Authority does not accept that

standard G14 was breached.

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

Signed for and on behalf of the Authority

Judith Potter
Chairperson
22 May 1997

Appendix

Women's Action for Justice's Complaint to Television New Zealand Ltd -

16 February 1997

On behalf of Women's Action for Justice, Tighe Instone complained to Television

New Zealand Ltd, through the Broadcasting Standards Authority, about an item on

One Network News, broadcast between 6.00 - 7.00pm on 7 February 1997.

The item dealt with the decision of the Privy Council on the appeal by Gay Oakes

against her conviction and, Ms Instone wrote, it was "blatantly incorrect" when Ms

Wendy Johnston stated that Ms Oakes was not a battered woman. The specific

comment made by Ms Johnston (the murder victim's sister) was included in the

complaint.

Acknowledging that members of the victim's family were entitled to their opinion, Ms

Instone nevertheless pointed out that the Crown Prosecutor, and judges in the High

Court and Court of Appeal, had conceded that Ms Oakes was a battered woman. A

comment to that effect from Justice Hardie Boys in the Court of Appeal's decision

was cited in the letter of complaint.

TVNZ's Response to the Formal Complaint - 12 March 1997

Assessing the complaint under standard G14 of the Television Code of Broadcasting

Practice, TVNZ said that Ms Wendy Johnston's comment was clearly her opinion.

The item, it said, had also included the opinions from Ms Oakes' counsel and from the

complainant group and were broadcast to allow the viewer to consider the different

perspectives.

TVNZ wrote:

Wendy Johnston was entitled to express a view about this case, and that view

went some way towards ensuring that the item was fair and balanced. After all,

the Appeal Court ruling delivered by Justice Hardie Boys (the subject of the

Privy Council referral) clearly records an open mind on battered woman's

syndrome in this specific case.

TVNZ included a comment from Justice Hardie Boys' decision to illustrate his

attitude, and declining to uphold the complaint, it concluded:

The purpose of this item was to tell viewers that the final appeal open to Ms

Oakes had been turned down. It was appropriate to hear from a representative

of the murder victim's family to get its perspective on the case. It was also

appropriate to hear from you as you ventured an opinion on the matter of

premeditation, and from Ms Oakes' counsel as she called for a change in the law.

The Group's Referral to the Broadcasting Standards Authority - 24 March 1997

Dissatisfied with TVNZ's decision, on behalf of Women's Action for Justice, Ms

Instone referred the complaint to the Broadcasting Standards Authority under

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

The comment from Justice Hardie Boys cited by TVNZ, Ms Instone wrote, referred

to battered woman's syndrome. Ms Johnston, however, referred to Ms Oakes and

said that "she wasn't a battered woman". That fact was accepted during the trial, Ms

Instone explained, but her defence of "battered woman's syndrome" was not.

TVNZ's Response to the Authority - 9 April 1997

Advising that it had nothing of substance to add, TVNZ wrote:

The comment by Wendy Johnston to which Women's Action for Justice objects

was clearly an expression of Ms Johnston's opinion - an opinion which, as a

member of the murdered man's family, she was entitled to have heard.

The Group's Final Comment - 20 April 1997

The complainant group expressed its agreement that the Gardner family should be

allowed to advance its opinion. However, it added, such opinions must be based on

fact. On this occasion the opinion put forward was that Ms Oakes was not a battered

woman - an opinion which was in conflict with the evidence and the ruling from the

Courts.

As Ms Johnston's opinion was not countered by the facts, it was advanced as an

assertion of fact, and, consequently standard G14 was breached.