BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A reference to the charges against a Palmerston North police officer, who had been

granted name suppression, was made during a news report on 92.2XS on 26 March

1998 at about 8.30am.

D, the police officer, complained to the Broadcasting Standards Authority under

s.8(1)(c) that the broadcast was a breach of his privacy because it breached the

intention of the interim name suppression order, given in October 1997, and which

was still in force. He pointed out that the suppression order had been made to ensure

his prospects for a fair trial. He also noted that the news report had stated that he had

been charged with the offence of "injuring with intent to cause injury", when in fact he

had not at the time been arraigned on such a charge.

The station manager of 92.2XS responded that the police officer's name had not been

given, and that he had already been referred to as a police officer in two newspaper

stories relating to the court appearance. With respect to his claim that he had not been

arraigned on the second charge, the station advised that the reporter had been present

in court when it was announced that the further charges would be laid at his

appearance the following week.

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

Decision

The members of the Authority have read a transcript of the item, and have read the

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

determines the complaint without a formal hearing.

A brief news item on 92.2XS on 26 March 1998 at about 8.30am referred to the

Crown laying a new charge against an off-duty policeman accused of attacking a 15

year-old boy. In addition to assault and careless driving charges, it was reported that

he now faced a charge of "injuring with intent to cause injury".

D, the policeman, complained to the Broadcasting Standards Authority under s.8(1)(c)

of the Broadcasting Act 1989 that the broadcast breached the intention of a name

suppression order given in the Palmerston North District Court in October 1997. The

item, he said, referred to "the Palmerston North policeman with interim name

suppression who has already been charged twice" and "who has been charged with a

third offence of injury with intent to cause injury".

D pointed out that he had not at that time been formally charged with the offence of

"injuring with intent to cause injury", and that he had not been arraigned on such a

charge. He maintained that the matter had been referred to in correspondence from the

Crown Solicitor's office lodged with the District Court, and mentioned at the District

Court during a call-over on 20 March 1998. He noted that he was not required to be

present at the call-over. D expressed some concern that the reporter involved might

have used her personal relationship with the Crown Solicitor to obtain the

information.

When the broadcaster responded, it dealt first with the matter of name suppression

which it said had been reported in the local newspaper on two different occasions. It

noted that on each occasion the court reporter had referred to D as a Palmerston North

Police Officer. The station also pointed out that national media ran the story using

D's full name before his first court appearance, whereas the radio reporter had not

used his name.

To D's claim that he had not been formally charged with the offence of "injuring with

intent to injure", the broadcaster advised that the head of the Court's Prosecution

Department advised that an indictment had been filed by the Crown on 12 March

1998. At that time it was public information, the station argued.

The broadcaster reported that D was correct in noting that its reporter was not

present at the call-over on 20 March, but advised that she had appeared at a call-over

the previous week when it was indicated that the Crown would be laying further

charges at D's next appearance the following week. The station said that it took

exception to the suggestion that the reporter's personal relationship had influenced the

news coverage.

When it deals with complaints alleging a breach of privacy, the Authority applies a set

of privacy principles which it enumerated in an Advisory Opinion dated 6 May 1996.

The question for the Authority is which, if any, of those principles apply to the facts

of this complaint.

Principle (i) deals with the public disclosure of private facts. The Authority

concludes that that principle is not applicable on this occasion, because the fact of an

indictment having been laid is a matter for the public record. It is not a private fact.

The Authority also notes that Principles (ii) and (iii) do not apply as the broadcast

neither involved the disclosure of public facts which had become private again through

the passage of time, nor did it interfere with D's interest in solitude or seclusion. As

for principle (iv), which protects against the disclosure of private facts to abuse or

denigrate a person, the Authority finds no breach because first, the matter was not

private, and secondly, D was not identified, nor was he abused or denigrated. Next

the Authority considers Principle (v), which protects against disclosure of the name

and/or address and telephone number of an identifiable person. It finds this principle

does not apply as D's name was not given. The remaining two principles, Principles

(vi) and (vii), relate to defences to an individual's claim for privacy and, since there

was no breach of any of the preceding principles, do not apply to the facts of this

complaint.

With respect to D's allegation that the reporter's information was acquired because

she had a personal relationship with the Crown Prosecutor, the Authority does not

consider this to be relevant to the complaint. It is satisfied that the information about

the charges against D was in the public domain.

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

Signed for and on behalf of the Authority

Sam Maling
Chairperson
25 June 1998

Appendix

D's Complaint to the Broadcasting Standards Authority – 30 March 1998

D of Palmerston North complained to the Broadcasting Standards Authority under

s.8(1)(c) of the Broadcasting Act 1989 that a news broadcast on 92.2XS on 26 March

1998 at about 8.30am breached his privacy.

The news item contained a reference to "a Palmerston North police officer with name

suppression". D advised that he was that police officer.

In his view, the broadcast was a breach of the intention of an interim name

suppression order given in the Palmerston North District Court on 16 October 1997

and which was still in force. He observed that the suppression order was made

because of "the unhealthy amount of publicity" that was given to the matter during

the investigation, and prior to his first appearance in court. The court stated:

Of graver concern is the length of time it will inevitably take to bring matters to

trial doubtless some time in 1998 and the potential for prejudice to the

defendant's prospects of a fair trial in Palmerston North or indeed elsewhere in

circumstances where national publicity specifically focuses on the defendant

over a protracted period in a way which implants a possibly distorted image in

the public mind.

D complained that the broadcaster referred to "the Palmerston North policeman with

interim name suppression who has already been charged twice" and "who has been

charged with a third offence of injury with intent to cause injury." He wrote:

I have not been formally charged with the offence of injury with intent to cause

injury. I have not been arraigned on such a charge. The matter at this stage has

appeared on a document from the Crown Solicitor's Office at Palmerston

North that was raised at the Palmerston North District Court during a call-over

on 20 March 1998. I was not required to be present at that call-over, nor was

I. I am advised by my solicitor, [...] that [the reporter] was not present either.

[The reporter] has been the only journalist to report this matter (some six days

later). I am concerned that the fact that she has a relationship with the Crown

Prosecutor at Palmerston North [...] may have had a bearing on this reporting.

92.2XS's Response to the Complaint – 14 April 1998

When 92.2XS responded to the complaint, it referred to copies of news stories which

had appeared in the local newspaper. It noted that both stories referred to the

complainant as a Palmerston North police officer and the first story referred to him as

a senior officer.

In the station's opinion, its reporter had honoured the Court's order of name

suppression. However, it wrote, it understood that two national media ran D's name,

and photograph before he made his first court appearance.

Next the station turned to the broadcast on 26 March 1998, for which it provided a

transcript. To the complainant's argument that he had not been formally charged with

injuring with intent to cause injury at the time of the broadcast, the station advised

that this conflicted with information from the head of Palmerston North Court's

Prosecution department, which said that an indictment of the charge was filed with the

court by the Crown on 12 March 1998. The station recorded that the court

spokesperson said:

...in recent years the court has stepped away from the system where an

indictment would have to formally be presented before the court during the

accused's next court appearance, where it would become a matter of public

record.

...

Under the old system the charge would have been formally laid at [D]'s next

court appearance (which was call-over on the 20 March)..however [the court

spokesperson] informs [the reporter] that this is no longer the way it is done.

The station said it was correct that its reporter was not present at the call-over on 20

March. It advised that she had been present at a call-over the previous week, and it

was at that time that the Crown indicated it would be laying further charges against D

at his next appearance the following week.

The station said it and the reporter took exception to D's suggestion that the

reporter's relationship with the Crown Prosecutor had somehow influenced the news

coverage. It said that the reporter had been carrying out her job as a news reporter,

and the company was satisfied with her performance on this issue.

Two newspaper articles were appended, as well as a transcript of the item.

D's Final Comment to the Authority – 23 April 1998

In his final comment to the Authority, D referred first to the newspaper articles

submitted by the station. He considered they were a smoke-screen and submitted two

additional articles which related to the fact of his name suppression, and to the court's

displeasure at his being named by two media organisations prior to his first

appearance in court.

D said he accepted he was not given occupation suppression, but added that that was

not the subject of his complaint. He emphasised that he still had not been formally

charged with injuring with intent to injure. He wrote:

I reiterate that correspondence has only been filed at the Palmerston North

District Court with respect to such an allegation.

He did not believe that the fact that the court had changed from a system where an

indictment would have to be formally presented absolved the reporter of complying

with rules relating to the broadcast or publication of such matters.

Noting that the station had admitted the reporter was not present at his call-over on

20 March, D suggested that had she been following the proceedings at the 11 March

hearing, she would have heard that he had been excused from appearing on the 20th.

With respect to his suggestion that the news report was broadcast as a result of the

relationship between the Crown prosecutor and the court reporter, D said that that

was a comment only, and he noted it had not been denied.

Finally D said that he respected the rights of various news organisations to report

matters in a responsible way. In his submission, that had not occurred with this

particular item.

92.2XS's Response to the Final Comment – 4 May 1998

The station responded to D's final comment and made the following points:

1. D referred to a newspaper article in which he was named. The station asked

what relevance it had to the complaint. It repeated that his name was never

used on air, either before or after he was granted name suppression.

2. To D's argument that name suppression was not the subject of his complaint,

the station referred to D's original letter of complaint, which included a

quotation from the Judge.

3. To D's claim that he had not been formally charged, the station responded that

an indictment had been filed with the Palmerston North District Court. It was

not, as D claimed, simply "a piece of correspondence from the Crown Solicitor

to the Court." It noted that the indictment was filed in Court on 12 March, 14

days before the story was broadcast.

4. The fact that D was not in Court on 20 March was not relevant, as it was not

mentioned in the news story.

5. With respect to the reporter's personal relationship with the Crown Solicitor,

the station repeated its previous comments and said that it was satisfied that

the reporter had acted in a responsible and ethical manner. It concluded:

...he is clutching at straws to suggest any bias or persecution from [the

reporter] or 2XS FM.

D's Further Comments – 6 May 1998

D responded to the numbered points above.

1. D maintained that he did not allege that the station or the reporter had used his

name since the name suppression order had been granted.

2. The newspaper articles were initially raised by the station manager in response

to the complaint.

3. D reiterated that he had not formally been charged with injuring with intent to

injure. He repeated that correspondence had only been filed in the Palmerston

North District Court with respect to that allegation. He maintained that the

document presented by the Crown Solicitor was not a public document until it

had been formally presented in court as an indictment, which to date had not

occurred.

4. D stated that he only raised the point that he had not been in court on 20

March to emphasise that the reporter was not following the story in a

professional manner and was not fully aware of what was happening.

5. D noted that the station did not deny that the reporter used her relationship

with the Crown Prosecutor to obtain the information. D stated that he was

not "clutching at straws", but was anxious to receive a fair trial. He maintained

that this would only happen if the reporter acted in a professional manner

with regard to obtaining information and broadcasting it.

D concluded by stating that he stood by his complaint of 30 March. He pointed out

that he had not complained about any of the media coverage given to the allegations

against him, and respected the rights of the media to report in a responsible way. He

submitted that was not the case with this particular item.

92.2XS's Further Comments – 20 May 1998

The station responded to D's assertion that the document filed by the Crown Solicitor

was not a public document until it had been formally presented in court.

It advised that after further discussions with a court official, it learned that the

indictment was lodged by the Crown Solicitor on 12 March 1998 and was mentioned

at a call-over on 20 March. The station argued that as the public and the press are

entitled to be present at a call-over, the information is therefore a matter of public

record, and the reporter was merely using public information available at the court.

The station said that if D was concerned about the possibility of the media coverage

affecting his right to a fair trial, he could request that the trial be transferred to another

centre.

It concluded by expressing concern at D's personal attacks on the credibility and

integrity of its reporter.

Further Correspondence

In a letter dated 1 June 1998, D stated that he continued to take issue with the matter

of the indictment. He repeated that the document had been filed at the Palmerston

North District Court, but he had not been formally charged with "injuring with intent

to injure", nor had he been called upon to plea to such a charge.

Again, he noted that the reporter was not present at the District Court call-over on 20

March, and that neither she nor the station had ever denied that she obtained her

information regarding the indictment as a result of her relationship with the Crown

Prosecutor.

D suggested that the station's comment that he could have his trial transferred to

another centre was a clear example of the flippant, cavalier attitude that the company

had taken towards reporting his case.