BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The recent attack on a rugby league referee by a spectator at Petone was discussed in

an item on Holmes broadcast on TV One at 7.00pm on 5 May 1997.

Mr Kearney complained to the broadcaster, Television New Zealand Limited, that the

item was about a matter that was sub judice, and was likely to prejudice the right to a

fair trial for the man who had been arrested for the assault. Mr Kearney said he found

it disturbing that the victim of the offence, and a witness, were interviewed before any

evidence could be given in Court.

TVNZ advised that the item complained about had been carefully considered by its

legal advisers prior to the broadcast. As this advice was that the broadcast did not

breach the sub judice rule, it declined to uphold the complaint.

Dissatisfied with TVNZ's response Mr Kearney referred his complaint to the

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

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

unfair to the defendant and, consequently, a breach of standard G4 of the Television

Code of Broadcasting Practice.

Decision

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

the correspondence (summarised in the Appendix). In this instance, the Authority

determines the complaint without a formal hearing.

An attack on a referee of a children's rugby league match opened an item on Holmes

broadcast on TV One at 7.00pm on 5 May 1997. The reporter interviewed the man

attacked and a witness to the attack. The facial injuries to the man were shown.

While the referee who was attacked did not wish to comment on the specifics of the

incident, the witness gave her account of the incident and, without mentioning his

name, described the attacker as a parent of one of the players. The item advised that a

47-year-old man had been arrested for the assault.

Nick Kearney of Auckland complained to Television New Zealand Limited that the

item was about a matter that was sub judice because, at the stage the item was

broadcast, a man had been arrested and charged with assault with intent to injure. Mr

Kearney believed that by interviewing persons whose statements might have a direct

bearing on the outcome of the case, the broadcaster had jeopardised the accused

person's right to a fair trial.

TVNZ in response assessed the complaint under standard G5 of the Television Code

of Broadcasting Practice, which requires broadcasters:

G5   To respect the principles of law which sustain our society.

TVNZ advised that the item had been looked at by its legal advisors prior to

broadcast. Their advice, which TVNZ considered it was entitled to accept, was that

the item did not breach the sub judice rule. It declined to uphold the complaint.

Mr Kearney in complaining to the Authority stated:

If TVNZ considered that the matter did not breach the sub judice rule then

where does that leave the reporting of such matters, and more importantly our

justice system, when broadcasters can blatantly interview victims and

witnesses of serious assaults when the matter is clearly sub judice.

In response to the Authority, TVNZ advised that it considered the proper place for a

discussion of whether or not there had been a breach of the sub judice rule was a court

of law. TVNZ argued that by seeking legal advice it had not breached broadcasting

standards.

Mr Kearney, in response wrote:

I accept the matter of sub judice probably falls out of the parameters of your

office as do TVNZ, but I would like to submit that the item was broadcast in

an irresponsible and unfair way, bearing in mind that the matter was before the

court as an offender had been arrested that morning.

The Authority, in considering the complaint, is of the view that standard G5 of the

Television Code of Broadcasting Practice was satisfied by TVNZ's obtaining a legal

opinion on the issue. It agrees with TVNZ that the matter of whether the sub judice

rule has been breached is a matter for the Courts, and not the Authority. However,

when the Authority first looked at the complaint, it considered that standard G4 of

Television Code of Broadcasting Practice might be relevant. This requires

broadcasters:

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

any programme.

In light of the fact that TVNZ had not considered this standard when corresponding

about the complaint with Mr Kearney and the Authority, the matter was referred back

to it for comment. TVNZ replied by stating that it did not consider it appropriate

that standard G4 should be raised at this late stage, and in any case it made the

comment:

We submit that the issue of spectator violence at children's rugby matches is

one which is both of and in the public interest. The interview with the mother

was a crucial eyewitness account of the incident. She described pre-game

instructions to the players, the referee's on-field comments and the background

to the incident which resulted in court action. Also included in the programme

was a live studio debate about the problems faced by referees. We point out

that at no time did TVNZ name the man who was arrested for the incident.

The Authority notes that once Mr Kearney realised that standard G5 might not be

relevant, he expressed his concerns at the fundamental unfairness of the broadcast to

the person who had been arrested for the assault. The Authority agrees that standard

G4 is relevant to the complaint, and is of the opinion that the defendant was not dealt

with justly and fairly by the programme. In the Authority's view, a person who is

arrested and who is shortly to appear in court is clearly not in a position to rebut a

witness's evidence given on nationwide television, and should not be expected to do

so.

The Authority appreciates the need for the media to report on incidents as they

happen but it believes that, in this case, TVNZ went over the line of fair and

responsible journalism in broadcasting parts of the interview with the woman

spectator. It is particularly concerned about the inclusion of her recollection of the

assault, recollections which have been presented in good faith, but which were likely

to be disputed in Court by the defendant.

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

broadcast by Television New Zealand Limited of an item on Holmes at 7.00pm

on 5 May 1997 breached standard G4 of the Television Code of Broadcasting

Practice.

It declines to uphold any other aspect of the complaint.

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

the Broadcasting Act. It does not intend to do so on this occasion as it considers that

the breach was not serious enough to warrant an order.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
25 September 1997

Appendix

Mr Kearney's Complaint to Television New Zealand Ltd – 7 May 1997

Nick Kearney of Auckland complained to Television New Zealand Ltd about an item

on Holmes, broadcast on TV One at 7.00pm on 5 May 1997. His complaint was that

the item about an attack on a rugby league referee at Petone was a matter that was sub

judice, and as such, the interviews conducted with the victim and a witness breached

the rules governing the broadcast of such material. He said that the presenter had

advised at the end of the programme that a man had been arrested for the assault, and

was due in Court at the end of that week.

Mr Kearney wrote:

If any prospective witnesses are doubtful as to what they saw then I am sure

that their views have since been tainted. Due to the nature of the charge, the

offender may, I believe elect trial by jury. Should any prospective juror or

even judge (who I hope would show no bias) have viewed that show they

would have no doubts as to the events that unfolded.

...

[I]t is still vitally important to let people facing Court action have their

independent views and evidence stated in Court before it is broadcast across

the country.

TVNZ's Response to the Formal Complaint – 27 May 1997

TVNZ considered the complaint under standard G5 of the Television Code of

Broadcasting Practice which requires broadcasters:

G5   To respect the principles of law which sustain our society.

While it recognised Mr Kearney's genuine concern, TVNZ advised that, as was

routine in such matters, the item was carefully considered by its legal advisors prior to

broadcast. Their advice was that the broadcast did not breach the sub judice rule.

TVNZ wrote that its understanding was that there is nothing in the law to prevent the

media reporting incidents out of which a prosecution arises.

Because it took the correct path of seeking legal advice and acting on that advice while

assembling the item, TVNZ did not believe that the programme could be accused of

failing "to respect the principles of law which sustain our society." It declined to

uphold the complaint as a breach of standard G5.

Mr Kearney's Referral to the Broadcasting Standards Authority – 14 June 1997

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

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

Mr Kearney made the point that a prosecution had already arisen (the presenter

reported that the alleged offender had been arrested the morning before the broadcast)

and the matter would be before the courts. He maintained:

If TVNZ considered that the sub judice rule was not breached, then where does

that leave the reporting of such matters, and more importantly the justice

system, when broadcasters can blatantly interview victims and witnesses of

serious assaults when the matter is clearly sub judice.

Mr Kearney attached a letter he had sent to the Auckland District Law Society and

the reply he had received, together with a NZ Herald article, in which some comment

had been omitted by the writer as the subject matter he was discussing was before the

court.

Mr Kearney in conclusion wrote:

I consider TVNZ and the producers of Holmes to have made a bad and basic

mistake on this matter, and I am not the only one to think this way. I don't

accept that the advice received from the legal advisors at TVNZ to be correct,

and look to have the decision overturned, and for TVNZ to admit that they

were out of line in broadcasting an item that was clearly sub judice.

TVNZ's Response to the Authority – 25 June 1997

TVNZ responded as follows:

Standard G5 requires broadcasters to "respect the principles of law which

sustain our society".

In this case TVNZ recognised the need for legal advice, sought the advice, then

acted upon it. In our view that demonstrated respect for the principles of law.

Mr Kearney believes the advice was wrong. With respect, we submit that the

proper forum for that argument is a court of law and that defining the

boundaries of the sub judice rule falls outside the purview of the Broadcasting

Standards Authority .

Mr Kearney's Final Comment – 29 June 1997

Mr Kearney accepted that TVNZ obtained legal advice stating that it had not breached

the sub judice rule. He also accepted that it might not be the Authority's role to

dispute that legal advice. However, he believed that the item was irresponsible and

unfair bearing in mind that the matter was before the courts as an alleged offender had

been arrested that morning.

TVNZ's Comments to the Authority – 6 August 1997

In response to a letter from the Authority requesting comment on the applicability of

standard G4 of the Television Code of Broadcasting Practice, TVNZ disagreed that the

standard was relevant. It considered that Mr Kearney's complaint was restricted to a

consideration of standard G5 (respect for the principles of law which sustain our

society). It believed that it was inappropriate for standard G4 to be raised at such a

late stage, and advised that the only time anything close to G4 had been raised was in

Mr Kearney's letter of 29 June. In the case that the Authority might disagree with

that view, it commented:

We submit that the issue of spectator violence at children's rugby matches is

one which is both of and in the public interest. The interview with the mother

was a crucial eyewitness account of the incident. She described pre-game

instructions to the players, the referee's on-field comments and the background

to the incident which resulted in court action. Also included in the programme

was a live studio debate about the problems faced by referees. We point out

that at no time did TVNZ name the man who was arrested for the incident.