BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

David Dougherty was released from prison following a re-trial where the jury had

found him not guilty of the rape of an 11 year-old girl. His story was the focus of an

item on 20/20 broadcast by TV3 at 6.30pm on 24 April 1997.

A complaint was made to TV3 Network Services Limited, the broadcaster, that the

programme contained two factual inaccuracies. First, while the programme mentioned

that David Dougherty had initially reported to the police on the 8th of October, he

had in fact reported on the 9th, as confirmed by Police records. Secondly, the item

was incorrect to state that the samples of stain found on the 11 year-old following the

rape were semen.

TV3 in response advised first, that the programme did not mention the date on which

David Dougherty reported to the police, and secondly, that evidence was given in

Court that the stain referred to was tested positively for the enzyme ACP, which is

found in semen.

Dissatisfied with TV3's decision, the complainant referred the complaint to the

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

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed the programme complained about and

have read the correspondence (summarised in the Appendix). On this occasion, the

Authority determines the complaint without a formal hearing.

A 20/20 programme broadcast by TV3 on 24 April 1997 at 6.30pm concerned David

Dougherty who, after a re-trial, was found not guilty of the rape of an 11 year-old girl.

The majority of the programme comprised an interview with David Dougherty.

Illustrative or explanatory film was inserted in the interview where appropriate. At

one point the programme included a reconstruction of the events of the night on which

the rape occurred, presented on the basis of the evidence given by the 11 year-old.

The reporter then said "... there is another version of events ..." and recounted that Mr

Dougherty had reported to Police as soon as he was made aware of the fact that he

was at the centre of the allegations. Mr Dougherty was then interviewed about the

events on the night in question. Also included was an analysis of the DNA results

which led to the re-trial. These revealed that the semen tested could not have been

that of Mr Dougherty.

A complaint was made to TV3 that the programme contained two inaccuracies. First,

the programme stated that Mr Dougherty had gone to the police station of his own

volition on the 8th of October, when in fact, the complainant stated, as evidenced by

the trial transcripts and Police records, he had not been interviewed until the 9th.

Secondly, the reference to seminal stains in the programme was incorrect in that the

samples were not confirmed as containing traces of semen.

TV3 in response advised that it had considered the programme under standard G1 of

the Television Code of Broadcasting Practice which requires broadcasters:

G1   To be truthful and accurate on points of fact.

In response to the first part of the complaint, TV3 wrote that the programme had not

mentioned a date when Mr Dougherty had reported to the Police. In response to the

second aspect of the complaint, TV3 advised that the stain found in the victim's

underpants had been tested by scientists for the enzyme ACP which is found in

semen. The tests were positive. Evidence to this effect, TV3 stated, was given in

court. It declined to uphold the complaint.

In referring the matter to the Authority, the complainant advised that programme

inferred that Mr Dougherty had rushed to the Police as soon as he knew about the

allegations. The complainant believed he would have known about the allegations on

the 8th, not the 9th. Accordingly, TV3 had misrepresented the situation.

In respect of the stains, the complainant maintained that the presence of the enzyme

ACP did not conclusively prove that the substance tested contained semen.

In respect of the first part of the complaint the Authority notes that no date was

mentioned on the programme as to when Mr Dougherty visited the police. The

programme did report that once he was aware that he was at the centre of the

allegations, Mr Dougherty went straight to the Police. While this statement may have

led some viewers to conclude that he went to the Police station on the 8th, the

Authority concludes that the statement was not sufficiently inaccurate to breach

standard G1. In relation to the second aspect of the complaint, the Authority

considers that from all the information available to TV3, it was entitled to make the

statements it did about the DNA, and its comments were not inaccurate. The

evidence put by the two expert witnesses for the defence at the re-trial was accepted

by the Court as evidence that the stains on the girl's clothing did not come from David

Dougherty. Evidence was given in court by both of these expert witnesses that the

stains were seminal in origin.

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

The Authority notes that the complainant forwarded to it details of a complaint made

to TV3 regarding an item on Nightline broadcast on 14 June 1996. The complaint was

not accepted by TV3, as it had not been sent within 20 working days of the broadcast

of the programme – as required by the Broadcasting Act. It did however respond

briefly to the substance of the complaint, which related to pictures shown, which the

complainant considered revealed information which was capable of identifying the area

where the victim and her family lived. Having looked at the correspondence, it is the

Authority's view that had the matter been referred to it as a formal complaint alleging

inaccuracy, it would have been unlikely to have upheld it.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
11 August 1997

Appendix

Complainant X's Complaint to TV3 Network Services Ltd - 7 May 1997

A complaint was made to TV3 Network Services Limited about an item on the current

affairs programme, 20/20, broadcast at 6.30pm on 24 April 1997. The item concerned

David Dougherty who had just been released from prison following a re-trial where

the jury had found him not guilty of the rape of an eleven year-old girl. The

complainant alleged that the programme had made two factual errors, and wrote:

1. David Dougherty did not report to the Police on 8 October; refer to trial

transcripts and the Police. He vanished until Friday 9 October and samples

were taken late that day.

2. The semen you [20/20] refer to, is to be referred to as No 3 allele. The

amount on the underpants was as small as a skin flake and as yet it has not

been determined whether the No 3 is seminal, (no sperm was found ) a tear,

blood or skin.

TV3's Response to the Formal Complaint - 21 May 1997

TV3 considered the complaint under standard G1 of the Television Code of

Broadcasting Practice which requires broadcasters to be truthful and accurate on

points of fact.

TV3 advised that the item did not state that Mr Dougherty reported to the police on 8

October. Rather, it wrote, the item stated:

"..there is another version of events. When David heard of the allegations and

went to the police station...there he told them where he was on that night."

TV3 further explained that David Dougherty had been staying at his mother's house

on the night of the 8th. Following advice from his partner of the allegations, he went

to the police of his own accord. TV3 declined to uphold the complaint.

In reference to the second aspect of the complaint, TV3 said that the stain on the girl's

underpants was tested by two persons who gave evidence at the retrial. Both tests

were positive for the enzyme ACP, which is found in semen.

Referral of the Complaint to the Broadcasting Standards Authority - 27 May

1997

Complainant X, dissatisfied with TV3's response, referred the complaint to the

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

The complainant advised that the 20/20 item gave the impression that David

Dougherty rushed to the Police as soon as his partner had told him of the allegations.

However, the complainant believed that Mr Dougherty had been advised by his

partner on the 8th of the allegations.

Further information was provided to the Authority which the complainant considered

explained why it was wrong to refer to the stain as being "another man's semen". In

summary, it was stated that while the sample tested positive for ACP, no sperm were

found. ACP, the complainant maintained, was found in a number of different body

fluids.

TV3's Response to the Authority - 1 July 1997

TV3 considered that the factual information represented in the programme was a fair

reporting of the proceedings at the Auckland High Court. It enclosed a letter it had

received relating to the DNA evidence from one of the expert witnesses at the re-trial.

Complainant X's Final Comment - 9 July 1997

The complainant advised that TV3 had used one person's interpretation of evidence

only, whereas the judge's summing up encompassed everyone's testimony in a fair

manner. Enclosed were copies of the opening address and summing up given by the

judge at the re-trial.

The complainant still felt that the 20/20 programme had not fairly and accurately

reported events.

The complainant also mentioned dissatisfaction with a TV3 Nightline programme

screened on 14 June 1996 which, it was said, was filmed at a place described as the

scene of the crime. The complainant advised that the place was not the scene of the

assault. It was alleged that TV3's presentation of the facts was misleading. The

complainant enclosed letters concerning the complaint which had been made to TV3

regarding the programme . The letters showed that the complaint had been responded

to by TV3, but not treated as a formal complaint as it was made well outside the

statutory period of 20 working days from the broadcast.

TV3's Response - 22 July 1997

TV3 commented that the complainant was incorrect in the interpretation of the

comments on the Nightline programme. The programme, it stated, had referred to the

fact that the assault occurred near, but not at, the place filmed. It also advised that it

still considered the 20/20 item to have been a fair and accurate report of the

proceedings.

Complainant X's Reply - received 29 July 1997

The complainant enclosed an article from the "Sunday Star-Times" published on May

5 1996 about David Dougherty.

Complainant X's letter reiterated the concern earlier expressed that the 20/20

programme was neither fair nor totally accurate.