BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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An appeal against this decision was dismissed in the High Court: CIV 2004-485-2035  PDF1.53 MB

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

National Radio – Nine to Noon – pre-recorded interview with young man and his mother – young man identified as “Nathan” – mother not identified by name – Nathan and his mother alleged that Peter Ellis had sexually abused Nathan when Nathan was attending the Christchurch Civic Crèche in 1985 – allegations non-specific – allegedly unfair, unbalanced and inaccurate

Findings
Principle 5 (fairness) – non-specific allegations of serious criminal offending by unidentified accusers against an identified person – broadcast inherently unfair – allegations impossible to defend – Mr Ellis not dealt with justly or fairly – upheld

Principle 4 (balance) – broadcast so unfair that Authority questioned whether balance was achievable – allegations of Nathan and his mother not part of so-called “Peter Ellis controversy” – “controversial issue of public importance” which required balance: Nathan and his mother’s new and separate allegations – balance not provided either in programme itself or in other broadcasts – upheld

Principle 6 (accuracy) – not Authority’s role to determine accuracy or otherwise of the allegations – declined to determine

Order
Broadcast of a statement

This headnote does not form part of the decision.

Summary of Broadcast Complained About

[1] On Monday 25 August 2003 on Nine to Noon on National Radio, Radio New Zealand Ltd broadcast a pre-recorded interview conducted three days earlier by Nine to Noon presenter Linda Clark. The interviewees – a young man identified as “Nathan” and a woman identified as his mother – alleged that Peter Ellis had abused Nathan when Nathan was attending the Christchurch Civic Crèche in 1985. Nathan and his mother did not specify the nature of the alleged abuse, but sexual abuse was clearly implied.

[2] Before describing the broadcast complained about in more detail (see paragraphs [16] to [23]), the Authority sets out some background which is relevant to its determination of the complaint.

Background

[3] In June 1993, a jury in the High Court at Christchurch found Peter Ellis guilty on 16 of 25 charges of committing sexual offences against young children at the Christchurch Civic Crèche where he had been employed as a child care worker. He was sentenced to 10 years imprisonment.

[4] Mr Ellis appealed against his convictions on the grounds that the verdicts were unreasonable in that the evidence of the children was not credible and that there had been a miscarriage of justice. In September 1994 the Court of Appeal quashed three of the convictions (relating to one of the children who had retracted her accusations during the course of the appeal hearing) and dismissed the rest of the appeal.

[5] In February 2000 Mr Ellis was released from prison, having served the mandatory two-thirds of his sentence.

[6] Mr Ellis has always maintained his innocence.

[7] In the decade since 1993, the circumstances surrounding Mr Ellis’s convictions have been the subject of considerable public controversy, widespread media coverage, and a number of unsuccessful calls for commissions of inquiry into the case and/or the exercise of the Royal Prerogative of Mercy.

[8] In March 2001, former Chief Justice Sir Thomas Eichelbaum released his report on a ministerial inquiry into the case. The terms of reference for the ministerial inquiry included a requirement that Sir Thomas report on:

… whether there are any matters which give rise to doubts about the assessment of the children’s evidence to an extent which would render the convictions of Peter Hugh McGregor Ellis unsafe and warrant the grant of a pardon.

[9] On that term of reference Sir Thomas’s report concluded:

The case advanced on behalf of Mr Ellis fails … to satisfy the Inquiry that the convictions were unsafe, or that a particular conviction was unsafe. It fails by a distinct margin; I have not found this anything like a borderline judgment.

[10] In October 2001, Lynley Hood’s book A City Possessed: the Christchurch Civic Crèche case was published. Lynley Hood concluded that, after years of investigation into the Christchurch Civic Crèche case, she had found “no evidence of illegality by anyone accused in this case”.¹  Instead, she wrote:

… I found convincing evidence that more than 100 Christchurch children [ie the children who were interviewed by the Specialist Services Unit of the (then) Department of Social Welfare] had been subject to unpleasant and psychologically hazardous procedures for no good reason, and that a group of capable and caring adults with no inclinations towards sexual misconduct with children [ie Peter Ellis and his fellow child care workers] had had their lives ruined as a result.²

[11] A City Possessed contributed to further public debate. In June 2003, a number of prominent New Zealanders launched a high-profile petition requesting a Royal Commission of Inquiry into the Christchurch Civic Crèche case. The petition sought an inquiry into “all aspects of the investigation and legal processes relating to the Christchurch Civic Crèche case”. The petition stated that the case was of “great public and professional concern” and raised “serious questions about the administration of justice and the working of existing laws which must be addressed”.

[12] The petition was presented to Parliament on 24 June 2003 by Lynley Hood and Member of Parliament Dr Donald Brash. At the date of release of this Decision in Part, the petition is before the Justice and Electoral Select Committee.

August 2003

[13] Several media reports were published or broadcast in August 2003, near to the time of the broadcast complained about (25 August 2003), which are of general relevance to this decision. They are:

• On 3 August, the publisher of The National Business Review, Barry Colman, took out a two page advertisement in the Sunday Star Times featuring excerpts from transcripts of videotaped interviews with some of the crèche children who Mr Ellis was accused of abusing. Some of the interviews had been shown to the jury at Mr Ellis’s trial, and some had not. Mr Colman told a Sunday Star Times reporter³ he believed no jury would have convicted Mr Ellis if it had seen all of the videotapes, and that in his view Mr Ellis was the victim of a “hysterical witch-hunt”.
  
  
• On 16 August, The Dominion Post newspaper published an article entitled “I am sick of being called a liar”. The article comprised an interview with two of the children Mr Ellis had been convicted of abusing. The catalyst for the interview was the Sunday Star Times advertisement published earlier in the month. The children, now teenagers, reported that their parents and counsellors had not manipulated them into making up allegations against Mr Ellis, that they felt betrayed by supporters of Mr Ellis, and that Mr Ellis was guilty.
  
  
• On 21 August, Nine to Noon presenter Linda Clark interviewed Gaye Davidson on National Radio. Gaye Davidson was the crèche supervisor at the time Mr Ellis worked there. The interview included discussion of: the two teenagers having come forward the previous week to reaffirm Mr Ellis’s guilt; allegations by some that the complainant children had “false memories”; and the petition requesting a Royal Commission of Inquiry. During the interview, Ms Davidson maintained that Mr Ellis had not committed the crimes for which he was convicted.
  
  
• On 31 August, TV3 Network Services Ltd broadcast an item on 20/20 on TV3 entitled “Crèche Case”. The item reviewed the history of the Christchurch Civic Crèche case in the context of the petition calling for a Royal Commission of Inquiry. It reported that the Justice and Electoral Select Committee would begin considering the petition the following week, and would be making recommendations to the Government.

[14] During the 20/20 programme ”Crèche Case”, and referring to the Nine to Noon interview with Nathan and his mother which is the subject of this complaint, 20/20 reported that “new allegations” had been made that week. The reporter stated:

Ellis won’t comment on the latest allegations because his legal counsel is preparing defamation proceedings against Radio New Zealand. But he did say that at the time the alleged abuse was supposed to have taken place, he didn’t even know where the crèche was, let alone anyone who worked there.

[15] The 20/20 item also quoted Gaye Davidson stating:

Peter Ellis wasn’t at the crèche in 1985, none of the staff or any of us knew about him until August 1986, and this is just the madness all starting again.

Broadcast Complained About

[16] Nine to Noon is broadcast from 9am until noon each weekday on National Radio. Nine to Noon is a magazine programme described on Radio New Zealand’s website as investigating:

… everything from hard news to lifestyle issues, with the help of newsmakers, overseas commentators and correspondents, fellow journalists, experts in every imaginable field, writers, reviewers and ordinary New Zealanders.⁴

Nine to Noon is presented by Linda Clark.

[17] On Monday 25 August 2003, a pre-recorded interview was broadcast on Nine to Noon. It comprised Ms Clark interviewing a young man and his mother. During the interview the young man’s mother referred to him as “Nathan”. Nathan’s mother’s name was not given. RNZ advised the Authority that Ms Clark interviewed Nathan face to face, and Nathan’s mother by telephone.

[18] Ms Clark introduced the item as follows:

When it comes to the Christchurch Civic Crèche case I think we now all agree that the children were abused. What the country can’t agree on is by whom. Is it Peter Ellis who’s to blame or the legion of psychologists and interviewers who questioned these children and led them to believe the abuse took place?

As you know, a celebrity-studded petition calling for a Royal Commission into the case goes before a select committee in the next few weeks. This morning you’re going to hear from one family who claims to know a great deal about Peter Ellis and the Christchurch Civic Crèche, yet they were never part of the police case. The boy was never interviewed as a small child by police or by psychologists. He was never part of the process Peter Ellis’s supporters claim brainwashed the other children. And why? Because it wasn’t until he was 16 years old that he told anyone he’d been abused.

I spoke to him and his mother on Friday afternoon. I began by asking him why he was so sure that it was Peter Ellis who abused him.

[19] A full transcript of the interview is attached as Appendix I. The following four bullet points summarise the story told by Nathan and his mother during the 40 minute interview.

• Nathan attended the Christchurch Civic Crèche for a short time at the end of 1985 when he was four. He became reluctant to go, and would hang on to the car door and the crèche gate and scream. At the time, Nathan’s parents thought he was just reluctant to be away from them. While he was at the crèche, he started wetting the bed, waking up from nightmares and vomiting, and complaining he had a “greasy bottom”. Nathan’s mother suspected something “untoward” was going on. She had noticed other things such as crèche children playing without their underwear or clothes on, and Nathan had told her he had been taken to a house and to a park by crèche staff. One day Nathan came home from the crèche with a very sore penis. On another occasion, two crèche staff, one of whom Nathan’s mother was sure was Peter Ellis, brought Nathan to her place of business before the end of the crèche day and left him there without explanation. She then took him away from the crèche, and the family subsequently moved to South Canterbury.
  
  
• In 1992 Nathan’s parents found out via the television news that Peter Ellis had been charged with committing offences at the crèche. Nathan was with his mother during the news item, and when he saw Peter Ellis walking towards the camera he “stopped dead in his tracks” and “went as white as a sheet” and said “I was at that crèche, I was at the crèche. … Nothing happened to me. Nothing happened to me”. He ran away and hid in a tree until it was dark. Nathan’s mother thought something must have happened to him, but when she asked him he denied it. She rang Brian Pearce at the Christchurch police station and visited a social worker working on the case, who told her not to do anything or ask Nathan again, but to wait until he was ready to tell her. Nathan’s parents did not bring the matter up again. They did not follow the case because they were extremely busy in their business at the time. Nathan was never interviewed as part of the Christchurch Civic Crèche case.
  
  
• Nathan did not tell anyone he had been abused until he told his mother one day when he was about 16. He first worked out he had been abused when he was about 14. Up until then he knew something was wrong. He knew things about sex that children of his age should not know. When he was 14 and started socialising with friends and girls he started to realise he was not really a normal teenager. For example, it scared him to socialise with girls, and he would “freak out” if a girl tried to kiss him or touch him. He “couldn’t handle” playing sport or doing physical education at school because of having to get changed in the changing rooms.
  
  
• In 2002 Nathan went to the police and was interviewed. The police initially told Nathan’s mother that it could not have been Peter Ellis because he did not work at the crèche at the time Nathan was there. Later the police told Nathan’s mother that they had a “reliable witness” who said that Peter Ellis was “associated and hanging out with people” at the crèche at that time. The police told Nathan they would not go ahead with a prosecution on his evidence alone. Nathan and his family are considering bringing a private prosecution against Peter Ellis.

[20] During the interview, the interviewer raised the following matters with Nathan for comment or response:

• that Mr Ellis had always denied and continued to deny inappropriately touching any of the children at the crèche
• that the women who worked with Mr Ellis at the crèche said that the abuse for which he was convicted could never have happened
• that Lynley Hood, author of A City Possessed, said that the crèche children who were convinced they had been touched and abused by Mr Ellis had false memories and had been manipulated by their parents or by counsellors and psychologists into thinking that they had been abused.

[21] During the interview, the interviewer raised the following matters with Nathan’s mother for comment or response:

• the fact that Nathan was at the crèche at the end of 1985 and, according to Lynley Hood’s book, Mr Ellis did not begin working at the crèche until 1986
• whether Nathan’s mother was in any doubt that the man who came to her place of business with Nathan was Mr Ellis.

[22] At the conclusion of the interview, the interviewer said to Nathan and his mother:

Well, I appreciate you both joining us for this conversation and I know it’s been a difficult thing to talk about.

[23] She then told listeners:

As I said at the outset, we pre-recorded that interview, clearly for legal reasons, and we haven’t, we have deliberately not used the name of the boy although his mother there referred to him by his first name Nathan, and that was at the wishes of the family.

Complaint

[24] Through his lawyers, Peter Ellis complained to Radio New Zealand Ltd, the broadcaster, that the Nine to Noon interview with Nathan and his mother was “grossly unfair” and lacked balance, and that he had been given no opportunity to respond to the allegations.

[25] Mr Ellis advised RNZ that defamation proceedings were being prepared against RNZ and the interviewees, and that the letter of complaint constituted a formal complaint under s.6(1) of the Broadcasting Act 1989.

[26] Mr Ellis denied the allegations made in the broadcast. There was “clear evidence” they were untrue, he stated, including that:

• he did not know Nathan
• he was not at the Christchurch Civic Crèche at the time Nathan and his mother alleged the events to have occurred. He stated that he had no association with the crèche, or anyone at it, until he started working there in the second half of 1986.

[27] Mr Ellis requested a public retraction and an apology. Through his lawyers, Mr Ellis stated:

The format and content were particularly unbalanced and unfair to Mr Ellis in that an unidentified accuser made unproven allegations of criminal conduct on his part, which your interviewer uncritically accepted and broadcast nationally without any of these allegations being put to him for his response. Further your interviewer formulated several of the most serious allegations and invited “Nathan” and his mother to confirm them.

RNZ’s Initial Reply to the Complainant

[28] RNZ, through its lawyers, denied that the format and content of the interview lacked balance or were unfair, and denied that the interviewer had in effect “led” the interview. It declined the request for a retraction and apology.

[29] RNZ’s reply stated:

[RNZ] is quite willing to provide an opportunity to Mr Ellis to be interviewed on the [Nine to Noon] programme as had been the offer to him prior to the broadcast about which he complains. We are sure you will be aware that Gaye Davidson was interviewed by Linda Clark a matter of days preceding the broadcast. Further it is noted that Mr Ellis agreed to be interviewed on the TV3 20/20 programme in relation to the same topic. Alternatively, Mr Ellis may wish to make a statement in reply which, subject to usual editorial discretion, could be broadcast as he may wish.

[30] RNZ did not respond to the broadcasting standards complaint. It suggested that it defer its response until the complainant had decided whether to issue defamation proceedings.
The Complainant’s Initial Response to RNZ

[31] Through his lawyers, Mr Ellis advised RNZ that he and his legal counsel were considering the invitation for a subsequent interview.

[32] Mr Ellis requested RNZ to respond to the broadcasting standards complaint, noting that the prospect of defamation proceedings had no bearing on the broadcaster’s statutory obligation to consider formal complaints, and that there was no provision in the Broadcasting Act 1989 to allow consideration of complaints to be deferred because of the prospect of defamation proceedings.

RNZ’s Response to the Complainant on the Broadcasting Standards Complaint

[33] RNZ subsequently responded to the broadcasting standards complaint.

[34] RNZ assessed the complaint under Principles 4 and 5 of the Radio Code of Broadcasting Practice. The principles and relevant guideline provide:

Principle 4

In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guideline 4b

Broadcasters may have regard, when ensuring that programmes comply with Principle 4, to the following matters:

(i)    …
(ii)   Any reasonable on-air opportunity for listeners to ask questions or present rebuttal within the period of current interest. Broadcasters may have regard to the views expressed by other broadcasters or in the media which listeners could reasonably be expected to be aware of.

Principle 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

[35] In relation to the Principle 4 (balance) aspect of the complaint, RNZ stated that there was “little doubt” that “the ‘Peter Ellis’ topic” had “assumed the status of a controversial issue in New Zealand society”. Highlighting the requirement in Principle 4 that broadcasters present significant points of view “either in the same programme or in other programmes within the period of current interest”, RNZ noted that there had been “extensive coverage of the topic in other programmes and news bulletins on National Radio and in other print and electronic media”.

[36] RNZ argued that “the period of current interest” for “the ‘Peter Ellis’ topic” was “open ended at this stage”. Submitting that balance could be achieved through other programmes in the period of current interest, it wrote that a finding on whether the broadcast complained about lacked balance could not be made “at this point”. It advised the complainant that, on that ground alone, it did not uphold the complaint.

[37] RNZ continued:

As well, given the breadth and depth of coverage of the issue on other Radio New Zealand programmes and news bulletins, for example the interview with Gaye Davidson on the 21st of August 2003, it was concluded that opportunity has been given for the presentation of “other significant points of view”. On these grounds as well, it was found that there had been no breach of Principle 4 in this instance.

[38] RNZ declined to uphold the balance aspect of the complaint.

[39] In relation to the Principle 5 (fairness) aspect of the complaint, RNZ noted that:

• Mr Ellis had been “personally invited” to participate on the Nine to Noon programme and had declined the offer
• Mr Ellis and his legal counsel were currently considering RNZ’s further invitation to appear on Nine to Noon, made since the broadcast complained about
  it had broadcast other interviews on the topic, in particular the Gaye Davidson interview on 21 August which it said “in part formed a defence of Mr Ellis’s position”.

[40] RNZ wrote:

Mr Ellis’s own reluctance to appear on the programme is outside of the control of Radio New Zealand. As he was unwilling to appear on the programme the allegation that he was given no opportunity to respond to the allegations is incorrect. As the opportunity was extended to Mr Ellis, and the invitation has been subsequently repeated, Radio New Zealand rejects the allegation that the programme was unfair.

[41] RNZ declined to uphold the fairness aspect of the complaint.

Referral to the Authority

[42] Dissatisfied with RNZ’s decision, Mr Ellis, through his lawyers, referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. Mr Ellis’s lawyers stated:

In short the complaint that Mr Ellis made that the programme was unfair and unbalanced was rejected because he had refused to participate in an interview.

[43] Mr Ellis advised the Authority that the evening before the programme complained about was broadcast, RNZ invited him to participate “in a sympathetic interview” with the presenter of Nine to Noon. He advised that he was given no notice that the content of the following day’s programme was the interview with Nathan and his mother, and their allegations.

[44] Mr Ellis’s lawyers continued:

Mr Ellis declined to be interviewed. Irrespective of that, Mr Ellis’s position is that imbalance and unfairness in a programme cannot be said to be eliminated by his refusal to participate in a programme and particularly one in which unsubstantiated and serious allegations were to be made against him. Mr Ellis is entitled not to participate and it is wrong for Radio New Zealand to suggest that his refusal to do so justifies the unfair and unbalanced programme.

[45] Mr Ellis considered that the broadcast breached:

• Principle 4, because he had been given “no reasonable opportunity” to present his point of view within the same programme or “sufficiently near in time within the period of current interest” and, in particular, he was given “no fair notice of the contents of the programme” when he was invited to be interviewed
• Principle 5, because he was not dealt with fairly and the material was “significantly unbalanced”
• Principle 6 [the requirement for truth and accuracy on points of fact],⁵ in that the allegations made by Nathan were presented as truthful and accurate facts, whereas they were unsubstantiated allegations which he denied. He argued that the broadcast made no distinction between fact, opinion and comment.

Summary of Further Submissions from RNZ and Mr Ellis

[46] Following receipt of Mr Ellis’s referral, the Authority received five further relevant submissions from both RNZ and Mr Ellis.⁶  As the submissions were lengthy and detailed, for ease of reference the Authority summarises them under the following headings and subheadings:

• Principle 4 – Balance (see paragraphs [48] to [92])
  
  
  • The controversial issue of public importance being discussed, and the period of current interest for that controversial issue
  • Whether RNZ made reasonable efforts to present significant points of view in the programme complained about
  • Whether RNZ gave reasonable opportunities to present significant points of view in the programme complained about or in other programmes in the period of current interest
  • Whether reasonable efforts were made or reasonable opportunities were given to present significant points of view in other programmes within the period of current interest, having regard under Guideline 4b(ii) to the views expressed by other broadcasters or in the media of which listeners could reasonably be expected to be aware.
    
    
• Principle 6 – Accuracy (see paragraphs [93] to [103])
  
  
  • Whether Nine to Noon is a news and current affairs programme to which Principle 6 applies
  • The requirement for truth and accuracy on points of fact, and the requirement in Guideline 6c that fact and opinion be clearly distinguished
    
    
• The application of the New Zealand Bill of Rights Act 1990 to the complaint (see paragraphs [104] to [108]).

[47] The parties made no further submissions on the requirement in Principle 5 (fairness) that broadcasters deal justly and fairly with any person taking part in, or referred to in, a programme.

Principle 4 – Balance

The controversial issue of public importance being discussed, and the period of current interest for that controversial issue

[48] RNZ initially argued that the Nathan interview was “inextricably linked with Mr Ellis’s supporters’ request for a commission of inquiry”. RNZ wrote:

The Authority may wish to note coverage given by other media in the period of current interest particularly the interview given in The Dominion Post by two of those originally abused.

The “period of current interest” now centres on the call for a commission of inquiry and inevitably all matters related to that call. The “Nathan” interview clearly falls within the boundaries of the current controversy and by its timing is within the period of current interest for that controversy.

[49] RNZ later submitted that the interview should be considered in the context of the ongoing media attention in relation to the various allegations against Peter Ellis. The interview was “generally relevant” in the context of the “Peter Ellis controversy”, and “specifically relevant” in the context of the “false memories” allegations, it argued.

[50] Mr Ellis disputed that the Nathan interview was “inextricably linked to [his] supporters’ call for a commission of inquiry”. He said RNZ had misunderstood the request for a commission of inquiry, and explained that:

• it was part of a petition to Parliament by author Lynley Hood and politician Dr Donald Brash
• it was neither at his behest nor signed by him or his legal counsel
• it was “very tightly focussed on the investigation and prosecution of the crèche cases” and was about “due process and the effectiveness of the criminal justice system”
• while he might realistically expect to benefit from a Royal Commission of Inquiry, he was not the petitioner and had not been invited to make submissions to the select committee.

[51] As to any relationship between the request for a Royal Commission of Inquiry and the Nathan interview, Mr Ellis argued that the Nathan interview concerned an allegation about him said to have occurred the year before he commenced employment at the Christchurch Civic Crèche. Neither Nathan nor his mother had sought to have their case be part of any potential inquiry. Furthermore, Mr Ellis argued, they said very little about the topic during the Nine to Noon interview complained about, even after prompting by the interviewer.

[52] Mr Ellis disputed that the “Peter Ellis topic” was the “controversial issue” being discussed in the interview with Nathan and his mother. The Nathan allegations, his lawyers submitted, were:

… a new and quite separate allegation, which had not been previously addressed in general public debate, and to which Mr Ellis had not had a proper opportunity to respond.

[53] Mr Ellis’s lawyers acknowledged that Mr Ellis’s convictions were a matter of ongoing public interest. However, he argued:

… the allegations published and seemingly endorsed by the Nine to Noon programme [were] an entirely separate issue.

[54] Nathan was not part of the original police investigation, nor was he attending the crèche at the time that Mr Ellis was employed there. Consequently, Mr Ellis argued, RNZ could not claim that the Nathan item fell within the general discussion concerning his earlier convictions.

[55] RNZ advised the Authority that Mr Ellis’s arguments that the Nathan interview was a separate matter from the ongoing Peter Ellis controversy, and that the “period of current interest” in relation to the Nathan story was narrow, were “rather artificial”. The period of current interest, it submitted, “certainly extended for long enough for Mr Ellis to have availed himself of one of the two separate offers to present his point of view”.

Whether RNZ made reasonable efforts to present significant points of view in the programme complained about

[56] RNZ argued that it had made reasonable efforts to present significant points of view in the programme complained about. It argued that the interviewer acted as “devil’s advocate” and put the following “significant issues” to Nathan and his mother:

• Mr Ellis always denied and continued to deny touching any of the children at the crèche
• women who worked with Mr Ellis said the abuse for which he was convicted could never have happened
• Lynley Hood’s book A City Possessed suggested that the children who said they had been abused by Mr Ellis had false memories and/or had been manipulated by parents/counsellors/psychologists
• there were problems, in terms of chronology, with Nathan’s account of events
• the interviewer sought to determine whether Nathan’s mother had any doubt that the man she saw with Nathan was Peter Ellis.

[57] RNZ submitted that the Authority should follow the principle expressed in Guideline 4b to Standard 4 of the Free-to-Air Television Code of Broadcasting Practice, which reads as follows:

No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.

[58] Citing the Authority’s “The Goons” decision (Decision No: 2003-006), RNZ argued that the “inherently negative nature” of matters being broadcast might be perceived as amounting to a “negative slant”, without there being a lack of balance.

[59] As to the relationship between editorial style and broadcasting standards, RNZ submitted:

How questions are put is a matter of editorial style at the discretion of the broadcaster and the presenter. A confrontational style will not necessarily best elicit information; this is a matter of judgment. But it is submitted that editorial style will not, save in the most extreme cases, raise broadcasting standards issues.

[60] Mr Ellis disputed RNZ’s contention that it had made reasonable efforts in the programme itself to present significant points of view, stating that “one [had] only to listen to the tape itself to see the futility of this argument”. It was “farcical”, his lawyers wrote, to suggest that the interviewer had acted as “devil’s advocate”. Of the five “significant issues” cited by the broadcaster (see paragraph [56]), only the last two were relevant and, when examined in context, were:

… put in such a way as to actually reinforce “Nathan’s” claims and explain away any perceived problems relating to [Mr Ellis’s] complaint.

[61] In response, RNZ did not agree that the first three issues put to Nathan were irrelevant, submitting that they were other relevant significant points of view. RNZ did not accept that the interviewer’s handling of the chronological problem reinforced the claims. Its lawyers wrote:

A blunt instrument is not always necessary or an appropriate way in which to put matters to an interviewee. This aspect of [the] submission relates to matters of editorial style and not to any allegation of breach of the relevant standard(s).

[62] In response, Mr Ellis’s lawyers stated that they had not been suggesting that an aggressive manner was necessary in order to put an alternative point of view or present a challenge to an allegation. Rather, they submitted:

… you do actually have to put the alternative view and you do have to challenge. What the interviewer did in this broadcast was to provide no other point of view and [the interviewer] failed completely to challenge the allegations. Where there was a clear opportunity to deal with areas of potential difficulty for the complainant [the interviewer] adopted an approach that effectively reinforced the allegation.

In this broadcast, which was clearly planned in advance, the manner of interview/the editorial style of the programme has prevented the presentation of significant points of view and contributed to the failure of the broadcaster to meet the obligations of the Code.

[63] Mr Ellis’s lawyers noted that the Nathan interview had been pre-recorded and that RNZ therefore knew “exactly what the substance of the accusations was”. The interview was therefore not a situation where RNZ could not be adequately prepared to provide some form of response to the allegations. In addition:

The presenter also appeared to be aware of the fact that Mr Ellis was not even working at the crèche at the time that “Nathan” claims he was abused by him, and thus that there were clearly difficulties with the boy’s allegations, which required challenging.

[64] Mr Ellis submitted that where the issue dealt with in a broadcast was of an inflammatory nature, the broadcaster had a greater responsibility to ensure that there was balance in the presentation, which must be achieved in more than just a simplistic manner. In support of that argument his lawyers cited the Authority’s recent “Foreshore and Seabed” decision (Decision Nos: 2004-036/037), where the Authority upheld complaints that a programme on the foreshore and seabed issue breached Standard 4 (balance) of the Free-to-Air Television Code of Broadcasting Practice. Mr Ellis’s lawyers wrote:

At paragraph 79 of its judgement, the Authority stated that contentious issues raised in a programme require either presentation of an opposing view, or critical examination by the reporter themselves, in order to satisfy Principle 4 of the Code.

[65] RNZ submitted that Mr Ellis’s lawyers had “overstate[d]” the Authority’s findings in the “Foreshore and Seabed” decision. It submitted that the Authority’s decision did not amount to a broad statement of principle, but was specific to the particular facts of that case.

[66] Mr Ellis rejected RNZ’s submission, submitting that the “Foreshore and Seabed” decision:

… properly reflects the higher standard required of a broadcaster when the content of the broadcast is of an inflammatory nature. … The requirement for impartiality, objectivity and responsibility is consistent with societal values and the privileged position a broadcaster enjoys.

[67] RNZ maintained its position that the Authority’s decision did not give rise to a heightened obligation on the broadcaster in the case of “any and all potentially inflammatory material”. The Broadcasting Act and the Radio Code, rather than the Authority’s decisions, defined RNZ’s obligations, it submitted.

[68] Mr Ellis’s lawyers responded that RNZ “inevitably” had to reject the principles enunciated in the “Foreshore and Seabed” decision in order to “maintain its stand”. They submitted that the Authority should give “due weight” to the “Foreshore and Seabed” decision. The making of a serious criminal allegation must carry with it a heightened obligation, they submitted, which was “entirely consistent with the spirit and intention of the Code and with duties in the civil arena”.

[69] In relation to RNZ’s argument that a broadcast could have a “negative slant” without being unbalanced, Mr Ellis argued that the Nathan interview was not an example of a balanced broadcast being achieved in spite of the inherently negative nature of the matters being broadcast. Rather, his lawyers stated:

Other significant points of view which were clearly available, even putting Mr Ellis to one side, were ignored by the broadcaster. It is hard to avoid the conclusion that there was no commitment to even attempt to provide a balanced programme.

[70] RNZ did not accept that other significant points of view had been ignored. They were presented in the programme itself, in other programmes, and in other media in the period of current interest, and Mr Ellis was twice offered an opportunity to present his point of view, but declined, it wrote.

[71] Mr Ellis submitted that it was “impossible to ignore the magnitude of the allegation that was to be knowingly aired” and the “corresponding obligation” on RNZ to ensure “to the best of its ability” that he was treated fairly. In response, RNZ contended that Mr Ellis’s reference to the “magnitude” of the allegation “sheds no light” on whether or not the Code was breached.

Whether RNZ gave reasonable opportunities to present significant points of view in the programme complained about or in other programmes in the period of current interest

[72] RNZ disputed Mr Ellis’s contention that the reason it had rejected his complaint was because he had “refused to participate in an interview”. Mr Ellis’s non-participation was “but one reason” for rejecting the complaint, it wrote.

[73] RNZ advised the Authority that it had offered Mr Ellis “various opportunities” to present his point of view, and in each case he had declined. Mr Ellis had been offered an opportunity to appear on Nine to Noon prior to the Nathan interview being broadcast. After the programme (and following receipt of the broadcasting standards complaint), RNZ again offered Mr Ellis the opportunity to appear on Nine to Noon, or alternatively to make a statement in reply to the broadcast.

[74] RNZ submitted:

In any event, any substantive response – other than the general points put to [the interviewees] by the presenter – would have to come from Mr Ellis himself. The opportunity to respond was provided to him and that, it is submitted, was in itself sufficient for the purposes of Standard 4.

[75] In response, Mr Ellis argued that it was important to have regard to the circumstances of any offer made to him. His lawyers advised the Authority:

• Mr Ellis had been contacted prior to the broadcast by a woman he thought was the “manager” of Nine to Noon (she called him in the evening, was “clearly distracted by children causing a disturbance in the background”, and he assumed she was at home).
• She invited him to do a “live” interview with Ms Clark. There was no mention of the Nathan allegation.
• Mr Ellis declined the interview and stated that he would not do an interview with Ms Clark because he did not like her style “in that she did not give people an opportunity to answer questions and he believed that she had her own agenda on [him] and would not be objective”. He also advised the woman that in any event he did not do live interviews.

[76] Mr Ellis’s lawyers considered that those circumstances “could never be regarded as providing a reasonable opportunity” to give his point of view. The offer for an interview was “no more than an invitation to an ambush”. Mr Ellis’s lawyers cited the Authority’s “Corngate” decision (Decision No: 2003-055/061) in support of their argument that a refusal to appear on a programme did not relieve a broadcaster of its obligations under the Radio Code.

[77] In response, RNZ submitted that a person could not, by refusing to provide their point of view, “effectively stifle the media or a particular media organisation”. RNZ’s lawyers wrote that Mr Ellis had conceded that:

… [he] was simply not prepared to appear on the programme and would not have done so under any circumstances; he didn’t like Ms Clark’s style. That is a matter for him.

[78] In RNZ’s submission, the two opportunities offered to Mr Ellis to appear on Nine to Noon, were “reasonable opportunities” as required by Principle 4. Mr Ellis’s media preferences (20/20 but not Nine to Noon) did not render the offers “unreasonable”. In addition, even if he did not wish to appear live on Nine to Noon, if Mr Ellis had genuinely wished to put his point of view he could have provided a statement. RNZ’s lawyers submitted:

The fact is that, in conjunction with their threats of defamation proceedings, Mr Ellis/his lawyers chose not to provide anything further to RNZ/Nine to Noon for broadcast. It is respectfully submitted that strategic (and selective) silence should not advance the complaint to the Authority.

[79] In response, Mr Ellis argued that the offers afforded him to present his point of view “lacked bona fides”. Even if a bona fide offer had been extended and declined, Mr Ellis submitted that the broadcaster’s obligation to present a balanced viewpoint would continue. Mr Ellis’s lawyers‘ submissions continued:

In any event, the idea that only Mr Ellis himself could provide the balance or had an obligation through his Counsel to provide balance is patently incorrect.

Mr Ellis did not choose to put his point of view on 20/20. In fact he declined to comment on the new allegations.

RNZ suggest that Mr Ellis could have taken steps to ensure that his point of view was presented. In fact the obligation is on RNZ, not Mr Ellis, to ensure that significant points of view are presented.

Whether reasonable efforts were made to present significant points of view in other programmes within the period of current interest, having regard under Guideline 4b(ii) to the views expressed by other broadcasters or in the media of which listeners could reasonably be expected to be aware

[80] RNZ argued that reasonable efforts had also been made to present significant points of view in other programmes within the period of current interest. RNZ cited “extensive ongoing media coverage of the Peter Ellis case generally”, the Gaye Davidson interview on Nine to Noon, the 20/20 “Civic Crèche” programme, and “extensive print media coverage”, including:

• “Crèche boy’s claims disputed”, The Dominion Post, 26 August 2003
• “Ellis sees lawyer over fresh claims”, The Press, 26 August 2003
• “Memory of a Sucker for Fabrication” (opinion piece by Denis Dutton), The New Zealand Herald, 17 September 2003.

[81] RNZ argued that the 20/20 documentary, which was broadcast shortly after the programme complained about, included comment from Mr Ellis rejecting the allegations made on Nine to Noon. RNZ argued that Guideline 4b(ii) of Principle 4 specifically contemplated such a situation, in that it states that:

Broadcasters may have regard to the views expressed by other broadcasters or in the media which listeners could reasonably be expected to be aware of.

[82] RNZ cited a number of previous Authority decisions to support its arguments that:

• the “period of current interest” could in some cases be “ongoing” [Decision No: 2003-028 (“Palestine is Still the Issue”); Decision No: 2002-024 (“Eureka”)], or “open for a substantial period” [Decision No: 2002-073 (“Double Lives”)]
• “breaches” of balance could be remedied by prior programmes (“Double Lives”)
• breaches of balance could be remedied by subsequent programmes [Decision No: 2000-030/031 (“Lyprinol”)]
• breaches of balance could be remedied in other media (“Eureka”).

[83] Mr Ellis submitted that RNZ’s arguments were based on the misconceived proposition that the Nathan interview was part of the ongoing “Peter Ellis controversy”. Far from “artificial”, the distinction between Nathan’s allegations and the “so-called Ellis controversy” was “fundamental”.

[84] In relation to the Authority’s decisions cited by RNZ, Mr Ellis’s lawyers submitted:

[RNZ invites the Authority to conclude] that it is legitimate for a broadcaster to air an unfair and/or unbalanced programme in the hope that some other broadcaster might remedy the unfairness at some other time within the period of current interest. Whilst the cases cited suggest that in some circumstances a later broadcast can indeed remedy a breach, it must be inherently objectionable to deliberately embark on such a course when the “story” involves an allegation of serious criminal misconduct and is almost inevitably an invitation to sue in defamation.

[85] RNZ disputed having submitted that it had broadcast an unfair/unbalanced programme in the hope that later programmes would remedy the position.

[86] In response, Mr Ellis submitted:

If RNZ was not looking to later programmes to provide balance then it is difficult to understand why they have repeatedly referred to the proposition that later programmes could provide such a balance.

[87] In this particular instance, no other programme had remedied the breach. It was “unsupportable”, Mr Ellis’s lawyers submitted, to suggest that the prior interview with Gaye Davidson – which made “no mention whatsoever” of the Nathan allegation – could remedy the breach. Likewise, it “border[ed] on the fantastic” to suggest that a newspaper article which reported “Ellis sees his lawyer over fresh claims” amounted to a remedial publication. In relation to the 20/20 programme, of the approximately two minutes which dealt with Nathan (in a 26 minute programme), only 48 seconds dealt with “other significant points of view”; Ms Davidson saying that Mr Ellis did not work at the crèche at the time, and Mr Ellis stating he did not wish to comment because of legal advice.

[88] Mr Ellis argued that Guideline 4b(ii) of Principle 4 could not have been intended to allow balance to be provided by “some possible future broadcast”. Furthermore, his lawyers noted that he had demonstrated in the short extract in the TV3 documentary that “he did not want to be involved with an interview over a matter that he instructs amounts to defamation.” The TV3 documentary “in no way presented, or purported to present, [his] “response” to the allegations made by “Nathan””.

[89] Mr Ellis submitted that accepting RNZ’s argument that it could rely on the views expressed in other media would:

… effectively endorse a situation where any programme could take a “side” in a debate, anticipating that another programme can take the other side, and pass this off as balanced broadcasting in accordance with Principle 4 of the code.

The Gaye Davidson interview

[90] Mr Ellis argued that the Gaye Davidson interview on Nine to Noon did not assist RNZ. Rather, he submitted, the Gaye Davidson interview suggested that the interviewer’s “biased approach” to him “may be more generalised than the one interview”. There was a “marked contrast” in the interviewer’s attitude to Ms Davidson as opposed to Nathan and his mother. The interviewer “vigorously challenged” Ms Davidson on all matters concerning him, and there was no suggestion of support from the interviewer for the possibility of his innocence. In the interview with Nathan, however, the interviewer “accepted [the allegations] without question”, and either “brushed over” or did not address “glaringly obvious flaws” such as:

• he was not a crèche worker until 1986
• Nathan’s mother’s call to police in 1991 or 1992 resulted in no interview of her son even though the police and child welfare agencies arranged for well over 100 children to be interviewed (even those who positively protested that they had not been abused).

[91] Nor did the Gaye Davidson interview support RNZ’s position on the “period of current interest”, Mr Ellis argued. Ms Davidson was only asked to address issues relating to the progress of the petition before the select committee and his convictions, and she did not address the Nathan allegation “even though she no doubt would have been able to answer any question as to when crèche staff first met [him].”

[92] RNZ responded that, even if it was established that the interviewer had taken a “firmer line” in the interview with Ms Davidson as opposed to the interview with Nathan and his mother, this would not amount to a breach of broadcasting standards.

Principle 6 – Accuracy

Whether Nine to Noon is a news and current affairs programme to which Principle 6 applies

[93] RNZ advised the Authority that it did not specifically address the original complaint under Principle 6 because it did not consider that Nine to Noon was a “news and current affairs programme”.

[94] RNZ argued that to impose “the strict standards of Principle 6 on programmes of the genre of Nine to Noon” would breach the rights conferred on interviewees and broadcasters by s.14 (freedom of expression) of the New Zealand Bill of Rights Act 1990. If Nine to Noon was considered to fall within the ambit of Principle 6, RNZ argued:

… it would be impossible for a broadcaster to conduct an interview of an extended length.

[95] Mr Ellis disputed that Nine to Noon was not a news and current affairs programme. His lawyers stated:

It clearly promotes itself as such and its content establishes itself as such.

[96] As the particular interview with Nathan and his mother involved new criminal allegations being made, it could only sensibly be described as a news item, Mr Ellis argued.

The requirement for truth and accuracy on points of fact, and the requirement in Guideline 6c that fact and opinion be clearly distinguished

[97] If Principle 6 did apply to Nine to Noon, RNZ initially submitted that fact and opinion had been clearly distinguished. What Mr Ellis complained was untrue was at best “disputed facts”. As the interview had been broadcast verbatim, “no real issue” arose as to whether the facts had been truthfully and accurately reported, the “facts” being Nathan’s and his mother’s “subjective recollection of events”. RNZ stated that Mr Ellis’s claims that he did not know the interviewee and had not been associated with or working at the Christchurch Civic Crèche at the time Nathan was there “[did] not derogate from the facts stated by the interviewee”.

[98] Mr Ellis argued that the interview contained an “unsubstantiated claim of serious criminal offending” which the interviewer apparently adopted as truthful. The interviewer’s questions were largely leading and never challenging, despite the interview being pre-recorded, he argued. His lawyers stated:

The interview contained none of the usual caution in dealing with such serious allegations where the police have declined to prosecute.

[99] Mr Ellis contended that the interviewer had not “at any stage” clearly distinguished fact and opinion as required by Guideline 6c of Principle 6. The interviewer, his lawyers argued, failed to ensure that the facts were not “lost amongst the sensationalism of the matter”. As an example, Mr Ellis’s lawyers pointed to the presenter’s introductory comment that Nathan was “never part of the process Peter Ellis’s supporters claim brainwashed the other children”. They submitted:

… in introducing the matter thus, the presenter appears to be implying that what “Nathan” is about to reveal must be the truth, because he [had] not been subjected to this “process”.

[100] Mr Ellis submitted that even if Nathan’s allegations could be classified as “fact” – albeit “disputed fact”– that did not relieve RNZ of the obligation to identify the contributions of the interviewer and Nathan’s mother as opinion. Mr Ellis’s lawyers’ submission continued:

Similarly the requirement to be truthful and accurate on points of fact is not discharged merely by broadcasting the allegations directly from the complainant. The submission of the broadcaster amounts to a proposition that as long as an allegation is spoken by the person making the complaint then no matter how outrageous or fanciful the claim may be there would be no fault with the broadcaster who makes no effort to test veracity and reliability. In this situation “Nathan” and his mother attributed comments adverse to Mr Ellis to other people. Ms Clark did not indicate whether this was indeed fact.

[101] RNZ submitted that Mr Ellis seemed to be suggesting that, during the course of an interview, a broadcaster had an obligation “clearly to dissect and distinguish factual comments by the interviewee from opinion/comment”. This suggestion was “unrealistic and impractical”, its lawyers wrote, adding:

The Authority will of course be aware of the very real difficulties associated with distinguishing whether a particular proposition is factual or an opinion/comment – even when time permits careful consideration of the issues. To require the broadcaster to intercede, during the course of an interview or otherwise, to make that distinction would simply be unworkable.

Further, as the Authority has noted on many occasions, one should not underestimate the ability of the New Zealand public to distinguish facts from opinions.

[102] RNZ later submitted that the “facts” portrayed were what Nathan and his mother said they were, and that those facts were accurate “because the broadcast relayed exactly what they said”. Furthermore, it submitted, RNZ took reasonable steps to verify statements of Nathan and his mother (see paragraphs [111] to [114] below).

[103] In response to that submission, Mr Ellis’s lawyers stated:

It is disturbing to see that RNZ continues to assert that the presentation of “Nathan’s” view without any disclaimer are “the facts”. Equally disturbing is the submission that second-hand hearsay by “Nathan’s” mother could amount to fact. Her account cannot but in large part amount to opinion.

The application of the New Zealand Bill of Rights Act 1990 to the complaint

[104] RNZ submitted that if the Authority upheld the complaint it would be applying the Broadcasting Act 1989 in such a way as to limit freedom of expression (s.14 of the New Zealand Bill of Rights Act 1990) in a manner which was not reasonably or demonstrably justifiable in a free and democratic society (s.5 of the Bill of Rights Act). The broadcaster submitted that s.6 of the Bill of Rights Act required the Authority to adopt an interpretation of the relevant principles which it considered was consistent with and gave full weight to the provisions of the Bill of Rights Act.

[105] Mr Ellis’s lawyers quoted from paragraph 80 of the Authority’s “Foreshore and Seabed Decision” (Decision Nos: 2004-036/037) as follows:

The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. It is the clear intention of the Broadcasting Act to limit freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by “such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society”. The limits prescribed in the Broadcasting Act, given effect in the Codes of Broadcasting Practice, are of such a nature.

[106] Mr Ellis’s lawyers submitted that the Bill of Rights Act did not provide authority to breach the Radio Code, and in itself provided significant protections for a person in Mr Ellis’s position. Mr Ellis’s lawyers submitted:

The [Bill of Rights] Act recognises competing rights and recognises the importance of the fundamental common law rights of people accused of criminal offences. These rights are paramount as can be seen in the balance the Courts draw between the right to freedom of speech and the laws of sub judice and the right to silence, this latter right being entrenched in New Zealand Law since the 19th Century. There is nothing in the Act that would invite an interpretation of the Code which could justify the broadcast that is the subject of this complaint.

[107] In response, RNZ submitted:

[Mr Ellis] does not suggest that the broadcast breached the sub judice rule, or that Mr Ellis’s right to remain silent has been compromised. As [Mr Ellis] points out, no charges have been laid and there is no imminent prosecution. Mr Ellis’s rights remain intact. Any suggestion that he has been defamed is a civil matter and is not a matter for the Authority.

[Mr Ellis] seeks to elevate [his] right to silence, notwithstanding that no charges have been laid, to a right to stifle Nine to Noon/RNZ (but not, for example, TV3) and prevent a story in which the public have a legitimate interest going to air. The argument seeks to use the shield the law affords to a defendant (or likely defendant) in a criminal proceeding as, in effect, a sword in relation to a broadcasting complaint. Such an interpretation is neither necessitated by the Bill of Rights Act nor desirable in a free and democratic society.

[108] Mr Ellis’s submission in response stated:

Mr Ellis does not seek to stifle legitimate broadcasts or prevent legitimate public interest [sic]. He does however wish to be accorded the same rights that other individuals have in New Zealand.

Submissions in conclusion

[109] Mr Ellis’s lawyers’ submission dated 23 February 2004 concluded:

Radio New Zealand appears to have taken the line that because the safety of Mr Ellis’s convictions is a matter of current public interest, he is not entitled to the normal protections given under the Broadcasting Act and it is in order for Radio New Zealand to broadcast uncritically [Nathan’s] unsubstantiated allegations as fact. That position is unsupportable.

[110] The complainant’s submission received on 3 May 2004 concluded:

The allegations made in the complained of broadcast were of the most serious kind. Any allegation of criminal wrong doing is serious and it is obvious that allegations of sexual abuse of children are amongst the more serious. Not only is Mr Ellis entitled to be dealt with in a fair and just way, but the New Zealand public are entitled to expect that news and current affairs programmes, particularly from state broadcasters, present information to the public that is of a reasonable standard and respects the needs and rights of individuals. This information must be of such a nature that it informs debate and does not merely promote the view point of the broadcaster, interviewer or a particular group in society. In the broadcast which is the subject of this complaint only one view was expressed. The broadcast was pre-recorded and therefore any failure to address the questions of fairness and balance must be seen as being intentional and therefore the more offensive.

Further Information Requested by the Authority

[111] Before it proceeded to determine the complaint, the Authority requested RNZ to answer the following question, as it considered RNZ’s response potentially relevant to its determination of the fairness aspect of the complaint:

What enquiries, if any, were made – and with whom – to substantiate the allegations of “Nathan” and his mother?

[112] RNZ was reluctant to respond because it considered that the complainant and his lawyers could potentially use the information to assess or re-assess the merits of a defamation proceeding and/or their strategy in relation to any such proceeding. While noting the protection afforded RNZ by s.19A of the Broadcasting Act 1989,⁷ it argued that the Authority should not use its powers under the Commissions of Inquiry Act 1908⁸ to “circumvent the impact” of the “newspaper rule”.⁹ 

[113] Nonetheless, RNZ’s lawyers provided the following information in response to the Authority’s question:

• Nine to Noon staff discussed the matters with Nathan’s mother on three occasions prior to recording the interview
• Nine to Noon staff met and interviewed Nathan face to face to record the interview
• the presenter interviewed Nathan’s mother by telephone
• RNZ staff were “already familiar with the range of issues arising in the ongoing Peter Ellis controversy”
• RNZ staff made inquiries with Winston Wealleans (the husband of another former crèche staff member, who RNZ said it understood to be “sympathetic to Mr Ellis’s position”) to “corroborate the dates mentioned in the interview as to when Mr Ellis was actually working at the crèche”
• RNZ staff attempted to corroborate with police whether they had a reliable witness who said that Mr Ellis was associated with and hanging around the crèche at the time when Nathan was attending. Police declined to comment
• RNZ carefully considered Nathan’s account of events in order to assess whether it was credible
• RNZ carefully considered Nathan’s mother’s account of events in order to assess whether it was credible
• RNZ staff “consulted its in-house library to corroborate details mentioned in the interview”.

[114] RNZ submitted that Principle 5 of the Radio Code did not “specifically oblige the broadcaster to make inquiries to substantiate allegations that are made in a broadcast.” Rather, it submitted, the principle required that the broadcaster deal justly and fairly with any person referred to and “RNZ did more than enough to satisfy the requirements of Principle 5”. In the event that the Authority considered it implicit in Principle 5 that a broadcaster was obliged to make inquiries to substantiate any allegations made in a broadcast, RNZ submitted that the inquiries RNZ staff made were “more than sufficient”.

[115] Commenting on RNZ’s response to the Authority’s question, Mr Ellis’s lawyers referred to the “clear protections” afforded defendants in s.19A of the Broadcasting Act, and to s.24 which confers on the Authority “such powers as are reasonably necessary or expedient to enable it to carry out its functions”, and stated:

… it is difficult to see how RNZ can hide behind the “newspaper rule” or indeed why they feel the need to. To allow them to do so in these circumstances would potentially place them above public interest and societal values.

[116] Mr Ellis’s lawyers continued:

The cursory detail provided of their investigations into the accuracy and reliability of Nathan’s allegations reveals that RNZ in fact did little by way of investigation and were prepared to proceed with this pre-planned broadcast relying almost exclusively on the stories of “Nathan” and his mother. They failed to obtain corroboration of a key fact of the allegation, namely that Mr Ellis was supposedly “hanging around” the crèche even before he was employed there, but still went ahead with broadcasting the allegations. It is astonishing that they even failed to advise listeners that they had enquired of the Police if this fact were true and could not get confirmation that it was.

That RNZ had an obligation to do more than they did is implicit not only by virtue of the obligations imposed on a broadcaster by Principle 5 but also by virtue of the obligation imposed under Principle 6, which imposes a duty to present matters accurately. It is a matter of common sense that the withholding of the information that the Police had not corroborated a key fact relating to “Nathan’s” allegations, is neither treating Mr Ellis fairly nor presenting an accurate account. As stated in an earlier submission, the broadcaster failed “miserably” in its obligations.

Authority's Determination

[117] The members of the Authority have:

• listened to a tape of the programme complained about and read the correspondence listed in Appendix II
• read a transcript of the programme complained about (see Appendix I)
• listened to a tape of the interview with Gaye Davidson broadcast on Nine to Noon on 21 August 2003
• viewed a tape of the 20/20 programme “Crèche Case” broadcast on TV3 on 31 August 2003.

[118] The Authority determines the complaint without a formal hearing.

[119] The allegations contained in the broadcast are serious and the complaint raises important issues about broadcasting standards. The Authority therefore co-opted Christopher Toogood QC for his qualifications and experience in media and criminal law, to assist it in its deliberations. As a co-opted person, Mr Toogood took part in the Authority’s proceedings on the determination of this complaint, but did not having voting rights in relation to the Authority’s decision.¹⁰

Preliminary comments – recording and broadcast of the interview

[120] The Authority sets out below the circumstances surrounding the recording and broadcast of the interview complained about:

• Some time prior to Friday 22 August 2003, Radio New Zealand’s Nine to Noon programme became aware that a young man (“Nathan”) and his mother were prepared to be interviewed in relation to their allegations that Peter Ellis had sexually abused the young man when he was a child attending the Christchurch Civic Crèche in 1985.
• Prior to the interview, Nine to Noon staff “discussed the matters” on three occasions with Nathan’s mother.
• Prior to the interview, RNZ was aware that:
  
  
  • Mr Ellis did not start working at the crèche until 1986, the year after Nathan attended the crèche
  • Nathan had not been interviewed by police or the Specialist Services Unit of the (then) Department of Social Welfare as part of the Christchurch Civic Crèche case
  • Nathan had gone to the police in 2002 and been interviewed, and the police had told him they would not be prosecuting Mr Ellis in relation to his allegations.
    
    
• On Friday 22 August, Nine to Noon’s presenter Linda Clark interviewed Nathan face to face and his mother by telephone.
• The interview was pre-recorded for what Nine to Noon’s presenter told listeners were “legal reasons”.
• On the evening of Sunday 23 August, a member of Nine to Noon’s production staff contacted Mr Ellis and invited him to participate in a live interview on Nine to Noon the following morning.
• Mr Ellis advised the Authority that the person who contacted him:
  
  
  • did not inform him that RNZ had already recorded an interview alleging new criminal behaviour on his part
  • did not inform him that RNZ planned to broadcast that interview during the same programme on which he was being invited to appear.
    
    RNZ did not contest this recollection.
    
    
• According to Mr Ellis, he was promised a “sympathetic” interview. He declined to be interviewed and told the person who contacted him that he would not be interviewed by Nine to Noon’s presenter because he did not like her “style” and he did not give live interviews. Again, RNZ did not contest this recollection.
• Prior to the broadcast, RNZ attempted to corroborate with police Nathan’s mother’s statement that police had a “reliable witness” who said Mr Ellis was “associated and hanging around with” people at the crèche at the time Nathan was attending. The police declined to comment. RNZ staff also made inquiries with a person (Winston Wealleans) who they understood to be “sympathetic” to Mr Ellis to “corroborate the dates mentioned in the interview as to when Mr Ellis was actually working at the crèche”.
• RNZ advised the Authority that before the broadcast it carefully considered Nathan’s and his mother’s accounts of events to assess their credibility.
• RNZ broadcast the recording of the interview on Nine to Noon on Monday 25 August.
• On 28 August, three days after the Nathan interview was broadcast, Mr Ellis laid his formal complaint under the Broadcasting Act with RNZ, and advised RNZ that defamation proceedings were being prepared.
• On 8 September, two weeks after the Nathan interview was broadcast, RNZ, via its lawyers, offered Mr Ellis a second opportunity to appear on Nine to Noon or, alternatively, to make a statement in reply to the allegations of Nathan and his mother.
• On 30 September, Mr Ellis advised RNZ that he and his legal counsel were considering whether he would agree to an interview. RNZ advised the Authority that it received no subsequent substantive response to the offer.

General observations – nature of the interview and its broadcast

[121] The Authority makes the following general observations about the nature of the interview and its broadcast:

• The allegations of Nathan and his mother were not put to Mr Ellis prior to the interview being broadcast.
• Neither Nathan nor his mother was identified. During the interview, the young man’s mother referred to him as “Nathan”, and at the end of the item the presenter informed listeners that Nathan was the young man’s first name. Nathan’s mother was not identified by name.
• Nathan and his mother did not specify the nature of the criminal offending that Mr Ellis was alleged to have perpetrated against Nathan when Nathan was attending the Christchurch Civic Crèche. Sexual abuse was clearly implied, however.
• During the interview, the interviewer did not seek further information on the nature of the allegations from either Nathan or his mother.
• Most of the information revealed by Nathan was elicited by the interviewer’s mainly closed and leading questions.¹¹ By contrast, the interviewer allowed Nathan’s mother to talk at length. The interviewer did not seriously question or contest the information provided by Nathan and his mother during the interview. The interviewer conducted the interview in a conversational manner, without the level of critique which would usually be expected in view of the seriousness of the allegations.
  
• During the interview, the interviewer raised the following matters with Nathan for comment or response:
  
  
  • that Mr Ellis had always denied and continued to deny inappropriately touching any of the children at the crèche
  • that the women who worked with Mr Ellis at the crèche said that the abuse (for which Mr Ellis was convicted) could never have happened
  • that Lynley Hood, author of A City Possessed, said that the crèche children who were convinced they had been touched and abused by Mr Ellis had false memories and had been manipulated by their parents or by counsellors and psychologists into thinking they had been abused.
    
    
• During the interview, the interviewer raised the following matters with Nathan’s mother for comment or response:
  
  
  • the fact that Nathan was at the crèche at the end of 1985 and, according to Lynley Hood’s book, Mr Ellis did not begin working at the crèche until 1986
  • whether Nathan’s mother was in any doubt that the man who came to her place of business with Nathan in 1985 was Mr Ellis.
    
    
• The interview was conducted and broadcast without Nathan’s and his mother’s story being seriously questioned or contested, despite the interviewer and the broadcaster knowing that:
  
  
  • Nathan attended the crèche before Mr Ellis started working there
  • the “evidence” that Mr Ellis was “associated and hanging out with” people at the crèche at the time Nathan was there was hearsay: Nathan’s mother said police said a “reliable witness” said this was the case. The police declined to comment when RNZ asked for corroboration of this account.
  • although Nathan’s mother went to police in 1992 when she found out Mr Ellis had been charged with committing offences at the crèche, Nathan was not one of the many children interviewed as part of the Christchurch Civic Crèche case.
    
    
• Nine to Noon did not broadcast any other information, either on the day of the broadcast complained about or subsequently, to corroborate, substantiate or offset the vague and unsubstantiated allegations.

Principle 5 – Fairness

[122] The Authority upholds the complaint that RNZ breached the requirement in Principle 5 to treat Mr Ellis, as a person referred to in the programme, justly and fairly.

[123] The broadcast complained about consisted of a young man identified only as “Nathan”, and the young man’s mother who was not identified, accusing an identified person, Mr Ellis, of criminal but unspecified offending of a very serious kind. As a general principle, the Authority considers that any programme in which unidentified accusers allege that an identified person has committed serious but unspecified criminal offences is likely to be inherently unfair to the accused. Regardless of what “opportunities” such a person might be offered to present his or her point of view, allegations of this nature are generally impossible to defend.

[124] The Authority does not agree with RNZ’s argument that upholding the complaint would limit freedom of expression in a manner which is not reasonably or demonstrably justified in a free and democratic society. The clear intention of the Broadcasting Act 1989 is to limit freedom of expression, by making broadcasters responsible for maintaining programme standards, including those in any approved code of broadcasting practice. Principle 5 (fairness) of the Radio Code of Broadcasting Practice¹² reflects the value that free and democratic societies place on treating people justly and fairly. This value is consistent with that expressed in other areas of the law, such as the right to a fair and public hearing by an independent and impartial court, and the right to be presumed innocent until proven guilty. In upholding the complaint that the programme was unfair to Mr Ellis, the Authority considers that its application of Principle 5 of the Radio Code is reasonable and demonstrably justified in a free and democratic society.

[125] Given the nature of the allegations and other circumstances of the broadcast, the Authority doubts that the requirements of Principle 5 could ever have been achieved. In any event, the Authority considers that RNZ failed to treat Mr Ellis justly and fairly in the following respects:

• The evening before the broadcast, RNZ invited Mr Ellis to participate in a “sympathetic” interview the following morning. It did not disclose to him the nature of the allegations that were to be broadcast against him. As a matter of fairness, RNZ should have informed Mr Ellis of the reason for his proposed participation, and the role expected of him. The general rule that contributors or participants in programmes be informed of the reason for their proposed contribution and participation and the role that is expected of them has been made explicit in the Free-to-Air Television Code of Broadcasting Practice.¹³ It is implicit in Principle 5 of the Radio Code. The only exception to this rule is when the public interest requires that the person not be so informed. In the Authority’s view, no public interest was served by not informing Mr Ellis of the allegations against him.
• Despite Nathan and his mother being interviewed at length, the interviewer did not ask about or attempt to elicit the exact nature of the alleged criminal acts. No information was elicited about what Mr Ellis was alleged to have done, when, or where. Therefore, regardless of the circumstances of any invitation to respond, it would have been impossible for Mr Ellis to defend the allegations.
• The fact that Mr Ellis declined the invitation to be interviewed is not relevant because the invitation was not a reasonable one. Mr Ellis was not invited to comment on the allegations; rather, he was invited to participate in a “sympathetic” interview. Had he agreed to the invitation for an interview, he would have been taken by surprise when the allegations were put to him, and he would not have been able to defend them for the reasons already given.
• Although the interviewer told Nathan’s mother that Mr Ellis was not working at the crèche when Nathan was enrolled, the Authority agrees with the complainant that the interviewer did not seriously challenge Nathan or his mother about this important discrepancy. As the interviewer was aware of this discrepancy before the interview, the Authority considers that she had a greater obligation to probe the interviewees on the matter.
• The “evidence” that Mr Ellis was “associated and hanging out with” people at the crèche at the time Nathan was there was hearsay. Nine to Noon was unable to corroborate Nathan’s mother’s account because police declined to comment. In fairness to Mr Ellis, the Authority considers that further investigation was necessary.
• RNZ then broadcast the interview without making any further effort to corroborate or substantiate the allegations.

[126] RNZ argued that how questions are put is a matter of editorial style at the discretion of the broadcaster and the presenter. RNZ submitted that editorial style would not, except in the most extreme cases, raise broadcasting standards issues.

[127] The Authority agrees that a confrontational or aggressive interviewing style will not necessarily best elicit information, and that the choice of interviewing style is a matter of editorial judgement. Given the subject matter being discussed in the interview with Nathan and his mother, it understands that a non-confrontational interviewing style may have been considered appropriate. However, it considers that the choice of editorial style adopted placed an even stronger obligation on the broadcaster to present an alternative view on the allegations. The Authority does not accept that editorial style is never a matter of broadcasting standards. In this case, the editorial style adopted contributed to the breach of Principle 5.

[128] In its response to the fairness aspect of the complaint, RNZ contended that other interviews on “the topic” had been broadcast, in particular the Gaye Davidson interview which RNZ said “in part formed a defence of “Mr Ellis’s position”. The Authority deals with RNZ’s reliance on other broadcasts on National Radio and in other media in its discussion of the balance aspect of the complaint below. It records here, however, that this argument has no substance in relation to the fairness aspect of the complaint: Ms Davidson’s interview did not touch on the new and separate allegations made by Nathan and his mother, and as such did not provide a defence on Mr Ellis’s behalf to those allegations.

[129] RNZ also rejected the fairness aspect of the complaint on the grounds that before the broadcast complained about Mr Ellis had been invited to appear on Nine to Noon, and that the invitation had been subsequently repeated. The Authority does not accept RNZ’s argument. A refusal to appear on a programme does not of itself relieve a broadcaster of its obligations under the Radio Code. Rather, it presents a new challenge for the broadcaster to find another way to satisfy the requirements of the Code. In addition, the Authority does not consider that RNZ’s offers of interviews to Mr Ellis were fair and reasonable.

[130] For the reasons given, the Authority upholds the complaint that the broadcast breached Principle 5 of the Radio Code.

Principle 4 – Balance

[131] Principle 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed, either in the same programme or in other programmes within the period of current interest. Clause (ii) of Guideline 4b allows the broadcaster to have regard to the views expressed by other broadcasters or in the media of which listeners could reasonably be expected to be aware.

[132] The Authority received lengthy submissions from the parties on the requirements for balance, which raised important questions about the application of Principle 4 to this complaint. At the outset, the Authority notes its view that the same defects which it considers made the broadcast fundamentally unfair to the complainant also raise the question of whether it was possible for balance to be achieved, when non-specific allegations by unidentified accusers give the accused nothing of substance to defend. In these circumstances the Authority considers that a balanced broadcast is virtually unattainable.

[133] Approaching the matter on the basis that balance was achievable, however, the important questions for the Authority are:

• What was the “controversial issue of public importance” being discussed in the broadcast complained about?
• Was the broadcast balanced in respect of the “controversial issue of public importance”? That is, did RNZ make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest for the controversial issue of public importance being discussed?

Controversial issue of public importance

[134] RNZ initially argued that the “controversial issue” being discussed was “the Peter Ellis topic”. Later, it argued that the Nathan allegations were “inextricably linked with Mr Ellis’s supporters’ request for a Commission of Inquiry”. It argued that the Nathan interview was “generally relevant” in the context of the “Peter Ellis controversy”, and “specifically relevant” in the context of the “false memories” allegations.

[135] For the following reasons, the Authority does not agree with RNZ:

• The “Peter Ellis controversy”, as it has come to be known, relates to Mr Ellis’s convictions in June 1993 on charges of committing sexual offences against children at the Christchurch Civic Crèche. It relates to claims by some that Mr Ellis suffered a miscarriage of justice because of the process by which the verdicts were reached. It relates to subsequent efforts by Mr Ellis to have his convictions overturned and a miscarriage of justice declared. The Authority considers that the broad “controversy” includes the calls for a commission of inquiry, the ministerial inquiry into the case, and Lynley Hood’s book A City Possessed (which challenged the basis on which the convictions were obtained).
• Nathan, however, was not part of the Christchurch Civic Crèche case. His allegations are a new and separate matter, involving new accusations of criminal offending which have never previously been in the public arena. Mr Ellis has not been charged with, let alone convicted of, offences against Nathan. Nathan did not make any allegations at or around the time of the Christchurch Civic Crèche case, and his allegations are not part of the so-called “Peter Ellis controversy”.
• The “false memories” issue arises from claims by Lynley Hood and others that the crèche children who said they had been abused by Mr Ellis had “false memories” of the abuse. While the interviewer briefly mentioned these claims to Nathan, “false memories” was not the issue being discussed in the broadcast.
• The Nathan allegations are not “inextricably linked” with the recent request for a Royal Commission of Inquiry. In fact, they are not linked in any way with the request. The request was part of a petition seeking an inquiry into “all aspects of the investigation and legal processes relating to the Christchurch Civic Crèche case”. Mr Ellis did not instigate or sign the petition. Nathan’s allegations have nothing to do with the petition, which in any event is about broader issues than Mr Ellis’s guilt or innocence in relation to the original charges. According to Mr Ellis, and not disputed by RNZ, neither Nathan nor his mother sought to have their case be part of any potential inquiry and, as Mr Ellis argued, they “said very little about the topic even after prompting by the interviewer.”

[136] The Authority agrees with the complainant that the Nathan allegations are new and quite separate allegations. In the Authority’s view, therefore, the “controversial issue of public importance” being discussed in the broadcast was the previously unpublicised, non-specific allegations of serious criminal offending by unidentified accusers against Mr Ellis. It was this controversial issue which required balance under Principle 4.

Significant points of view

[137] Contrary to RNZ’s assertions, the interviewer did not act as “devil’s advocate”. As noted by the complainant, one has only to listen to the interview itself – which was conducted in a conversational manner – to reject that argument. In relation to what RNZ described as “the significant issues”, the interviewer uncritically accepted what Nathan and his mother had to say. As discussed above, while the style of questioning is a matter of editorial judgement, in this case, and without other balancing material, it contributed to the breach of standards. The Authority also notes that the interviewer passed over opportunities during the interview to probe further on the nature of the allegations or critically assess their validity.

[138] Noting that Clause (ii) of Guideline 4b allows broadcasters to have regard to the views expressed in other media of which listeners could reasonably be expected to be aware, RNZ relied on “extensive coverage” of “the Peter Ellis topic” both on National Radio and in other print and electronic media to argue that “significant points of view” had been presented. In particular, RNZ relied on:

• an interview with Gaye Davidson broadcast on Nine to Noon on 21 August 2003
• several newspaper reports subsequent to the Nathan interview
• a 20/20 programme entitled “Crèche Case” broadcast on TV3 on 31 August 2003.

[139] None of these broadcasts or media reports assists RNZ in light of the Authority’s view that the controversial issue being discussed in the broadcast was the new allegations. The Gaye Davidson interview made no mention of Nathan’s allegations, and the newspapers simply reported that Mr Ellis was “seeing his lawyer” over the claims and that he had not been working at the crèche at the time of the alleged offences. The 20/20 programme was not a “response” to Nathan’s allegations. It merely reported that Mr Ellis would not comment on the allegations because his lawyers were preparing defamation proceedings against Radio New Zealand. It also reported that at the time the alleged abuse was supposed to have taken place, Mr Ellis did not know where the crèche was or anyone working there, and quoted Gaye Davidson in corroboration. Given the magnitude, impact, and gravity of the allegations, and their inherent unfairness as a result of their vagueness and the accusers’ anonymity, these broadcasts and newspaper reports manifestly did not provide balance.

[140] The Authority does not agree with RNZ’s contention that its second offer to Mr Ellis of an opportunity for an interview – made two weeks after the broadcast and 10 days after Mr Ellis laid his formal complaint – was reasonable. Furthermore, had Mr Ellis chosen to avail himself of the opportunity, it remained the case that there was nothing of substance for him to defend.

Period of current interest

[141] RNZ initially argued that if balance was not achieved within a particular programme it could be provided through other programmes in the period of current interest, and that because the period of current interest was ongoing, a finding on whether the broadcast complained about lacked balance could not be made “at this point”. RNZ later argued that the “period of current interest” centred on the call for a commission of inquiry and “inevitably all matters related to that call”. It considered that the timing of the Nathan interview was within the period of current interest for that controversy.

[142] For the reasons already given in paragraphs [134] to [136] – that the “controversial issue of public importance” being discussed was the previously unpublicised, non-specific allegations of serious criminal offending by unidentified accusers against Mr Ellis – the Authority does not agree. The “controversial issue” being discussed is the issue which requires balance during the “period of current interest”. In the Authority’s view, allegations of such a serious nature require balancing at the same time as they are made, or very close to the time they are made. The Authority agrees with the complainant that a broadcaster cannot rely on unplanned broadcasts sometime in the future to present the “balance” that its own broadcast lacks. The legislation and common sense preclude such an interpretation.

Conclusion on Principle 4 – Balance

[143] The Authority accepts that people cannot generally avoid information being disseminated simply by refusing to participate in a broadcast.

[144] When a person declines to participate in a broadcast, the broadcaster must ensure that viewers and/or listeners are aware that the issue being discussed is controversial and that there are other significant points of view. Often this can be achieved by, for example, the interviewer explaining the other points of view and/or adopting a devil’s advocate approach. In this case, however, for the reasons already stated the Authority seriously doubts that balance was achievable. In any event, balance was not achieved, and the Authority upholds the complaint that the Nine to Noon interview with Nathan and his mother breached Principle 4 of the Radio Code of Broadcasting Practice.

Principle 6 – Accuracy

[145] The Authority declines to determine whether the broadcast breached Principle 6 (accuracy). It notes that its function is to determine complaints about alleged breaches of broadcasting standards. It is not its function to determine the truth or otherwise of allegations of criminal behaviour (which is the task of the criminal courts).

[146] In declining to determine the accuracy aspect of the complaint, the Authority observes that it has already fully considered and determined the essence of the complaint, being that the broadcast breached Principle 4 (balance) and Principle 5 (fairness).

[147] The Authority wishes to comment, nonetheless, on two matters raised by RNZ in relation to Principle 6 (accuracy). RNZ argued that:

• Principle 6 did not apply to Nine to Noon because it was “not a news and current affairs programme”.
• The “facts” were what Nathan and his mother said they were, and those facts were accurate “because the broadcast relayed exactly what they said”.

[148] The Authority has made it clear on a number of previous occasions that Principle 6 does not apply to all the items on magazine programmes such as Nine to Noon. As the principle states, it applies only to news and current affairs items.¹⁴

[149] The Authority notes that RNZ’s own website describes Nine to Noon as a magazine programme which includes hard news, and a variety of other matters a number of which are current affairs items (see paragraph [16]). The interview with Nathan and his mother could only realistically be described as a news and current affairs item. It was therefore required to comply with the accuracy requirement in Principle 6.

[150] The Authority accepts that RNZ accurately reported the statements made by Nathan and his mother. However, it notes the very simple point that accurately reporting statements does not substantiate the accuracy of the statements. Principle 6 requires factual truth and accuracy from broadcasters in news and current affairs programmes. RNZ’s interpretation of the meaning of Principle 6 is not tenable.

Bill of Rights

[151] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The clear intention of the Broadcasting Act is to limit freedom of expression. Section 5 of the New Zealand Bill of Rights Act 1990 provides that the right to freedom of expression may be limited by “such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society”. The limits prescribed in the Broadcasting Act, given effect in the Codes of Broadcasting Practice, are of such a nature. For the reasons given in this decision, the Authority considers that its application of Principles 4, 5 and 6 of the Radio Code of Broadcasting Practice on this occasion is consistent with the New Zealand Bill of Rights Act. In coming to this conclusion, the Authority has taken into account all the circumstances of this complaint.

Conclusion

[152] In allowing the broadcast complained about to go to air, the Authority considers that RNZ ignored its responsibility under the Broadcasting Act 1989 to maintain standards consistent with the principles in the Radio Code of Broadcasting Practice.

[153] Mr Ellis has been convicted of and has served a prison sentence for sexual offences against young children at the Christchurch Civic Crèche. He is nonetheless a citizen of this country and, like all other citizens, is entitled to be treated justly and fairly. The Authority notes its deep concern at what amounted to a serious disregard for Mr Ellis’s rights.

For the above reasons, the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of an item on Nine to Noon on 25 August 2003 breached Principle 4 and Principle 5 of the Radio Code of Broadcasting Practice. It declines to determine any other aspect of the complaint.

[154] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[155] In its submissions, RNZ requested the Authority to reconsider the use of one phrase in its determination. The Authority has considered this request, but considers that the phrase used is appropriate in the circumstances of this case. It therefore declines to amend its determination.

Publication of a statement – s.13(1)(a)

Broadcast of a statement

[156] Mr Ellis’s solicitors submitted that the broadcast of a statement by RNZ was “essential”. Mr Ellis additionally submitted that the statement should refer to a number of key paragraphs in the Authority’s determination.

[157] RNZ accepted that the broadcast of a statement would be appropriate, but that the complainant should not be invited to have input to the content of any such statement.

[158] The Authority agrees that while the broadcast of a statement is appropriate, it has been provided with no compelling reason to depart from its usual procedure – that the statement be drafted by the broadcaster, to the satisfaction of the Authority. The Authority considers that this statement must also include an apology to Mr Ellis.

Publication of a statement in other media

[159] As in the view of the Authority it is not appropriate to make an order that RNZ refrain from broadcasting (see discussion below), the Authority has considered other appropriate means by which to mark its concern at the breach of broadcasting standards.

[160] The Authority considers that the most appropriate way for the serious breach of standards to be acknowledged is to require the broadcaster to publish, in each of the four major metropolitan daily newspapers in New Zealand, a statement summarising the content of this decision.

Order to refrain from broadcasting – s.13(1)(b)(i)

[161] Mr Ellis’s solicitors acknowledged that RNZ provides a “public service” and as such the interest of the public in the RNZ continuing to broadcast outweighed Mr Ellis’s interest in seeing RNZ punished. They submitted, however, that it would be appropriate to take Nine to Noon off air for a day, to be replaced by an alternative programme.

[162] RNZ, in response, noted that taking Nine to Noon off air for a day would impact primarily on the listening public. It further submitted and that this was not an appropriate case in which to impose such a significant penalty and that the power should be exercised sparingly. In this context it noted that this broadcast was a “one-off”, rather than a continuing or repeated breach, and submitted that this was not an appropriate case for an order under section 13(1)(b)(i) that RNZ refrain from broadcasting.

[163] In their final comment, Mr Ellis’s solicitors submitted that the public interest required a “very strong message indeed” to be sent to RNZ and that the public has a “very strong interest” in seeing Nine to Noon removed for a day.

[164] The Authority does not consider that it would be appropriate to order RNZ to refrain from broadcasting, either at all or specifically in relation to the Nine to Noon programme. The Authority considers that listeners, rather than the broadcaster, would be primarily disadvantaged by this course of action.

[165] The Authority also notes that had RNZ been a commercial broadcaster, the Authority would have considered ordering the broadcaster to refrain from advertising for a specified period. But as RNZ does not broadcast commercials, this option is not available.

Costs – s.16(1)

[166] It is accepted by both parties that an award of costs to Mr Ellis is an appropriate order in view of the Authority’s decision to uphold the complaint.

[167] Mr Ellis’s solicitors, on the issue of costs, noted that Mr Ellis has been granted legal aid in the sum of $3,950. This was subsequently increased, on application to the Legal Services Agency, to $5,300, to take into account the time spent making submissions on orders.

[168] Mr Ellis’s solicitors noted that if assessed on a time/cost basis, costs incurred would far exceed the level of the grant, and submitted that costs should be assessed from the base figure of what they would have been able to charge had Mr Ellis not been legally aided – in the region of $15,000. It was submitted that the present case was a serious breach of broadcasting standards, and that this should accordingly be reflected in a significant award of costs.

[169] RNZ accepted that a costs award should comprise a “substantial contribution” to the legal aid costs incurred by Mr Ellis. It refuted, however, that costs could properly be assessed from the figure that Mr Ellis’ solicitors could have charged if Mr Ellis were a privately paying client, and stated that the Authority lacked the jurisdiction to award costs greater than the level actually incurred. In support of its position, RNZ referred to Rule 47(f) of the High Court Rules.

[170] The Authority accepts RNZ’s submissions in this respect. It notes that its awards of costs are not intended to be punitive, and are instead intended to reimburse (in whole or in part, at the Authority’s discretion) the actual legal costs of successfully bringing or defending a proceeding. It also notes Rule 47(f) of the High Court Rules, which states that a principle to consider in determining a costs award is that an “award of costs should not exceed the costs incurred by the party claiming costs”. While not bound by the High Court Rules, the Authority considers that this principle applies equally in respect of its proceedings.

[171] For this reason, the Authority assesses its costs award from the base figure of $5,300, this being the amount of legal aid granted to Mr Ellis.

[172] In determining the quantum of the costs award, the Authority has taken into account RNZ’s acceptance that any costs award will involve a substantial contribution to Mr Ellis’s actual costs, and the modest sum claimed. In all the circumstances, the Authority considers that the award should comprise full reimbursement.

Costs to the Crown – s.16(4)

[173] Mr Ellis’s solicitors submit that costs to the Crown should be ordered, in the maximum sum allowable of $5,000. RNZ, in response to this submission, leaves the matter “in the Authority’s hands” as to whether an order for costs to the Crown is appropriate, and if so, in what sum.

[174] The Authority agrees with the submission of Mr Ellis’ lawyers in this respect. As it has noted above, it considers this to have been a serious breach of broadcasting standards, and is of the view that the maximum award of costs to the Crown is appropriate to mark the seriousness of the breach.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:

1. Pursuant to s.13(1)(a) of the Act, the Authority orders Radio New Zealand to broadcast a statement approved by the Authority. That statement shall:
   
   
   • be broadcast within one month of the date of this decision, at a time and date to be approved by the Authority;
     
   • explain that Radio New Zealand has been ordered to make the statement as a result of the Broadcasting Standards Authority’s decision to uphold the complaint about the interview on Nine to Noon on 25 August 2003;
     
   • contain a comprehensive summary of the Authority’s decision;
     
   • make an apology to Mr Ellis.
     
     
2. Pursuant to s.13(1)(a) of the Act, the Authority orders Radio New Zealand to publish a statement in a display advertisement, approved by the Authority, in each of the following newspapers within one month of the date of this decision on a date approved by the Authority: The Otago Daily Times, The Christchurch Press, The Dominion Post, and The New Zealand Herald. The statement shall not be in the Classified Advertising section and shall contain the following:
   
   
   • an explanation that Radio New Zealand has been ordered to publish the statement as a result of the Broadcasting Standards Authority’s decision to uphold the complaint about the interview on Nine to Noon on 25 August 2003;
     
   • a comprehensive summary of the Authority’s decision;
     
   • an apology to Mr Ellis
     
     
3. Pursuant to s.16(1) of the Act, the Authority orders Radio New Zealand to pay to the complainant costs in the amount of $5,300, within one month of the date of this decision.
   
   
4. Pursuant to s.16(4) of the Act, the Authority orders Radio New Zealand to pay to the Crown costs in the amount of $5,000, within one month of the date of this decision.

These orders shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
3 September 2004

Appendix I

Transcript of interview broadcast on Nine to Noon on National Radio on 25 August 2003 between Linda Clark (presenter) and “Nathan” and his mother (interviewees).

Presenter:
When it comes to the Christchurch Civic Crèche case I think we now all agree that the children were abused. What the country can’t agree on is by whom. Is it Peter Ellis who’s to blame, or the legion of psychologists and interviewers who questioned these children and led them to believe the abuse took place? As you know, a celebrity-studded petition calling for a Royal Commission into the case goes before a select committee in the next few weeks. This morning you’re going to hear from one family who claims to know a great deal about Peter Ellis and the Christchurch Civic Crèche yet they were never part of the Police case. The boy was never interviewed as a small child by Police or by psychologists. He was never part of the process Peter Ellis’s supporters claim brainwashed the other children. And why? Because it wasn’t until he was 16 years old that he told anyone he’d been abused. I spoke to him and his mother on Friday afternoon. I began by asking him why he was so sure it was Peter Ellis who abused him.

Nathan:        Because I remember it was him.

Presenter:    Remember his face?

Nathan:        Yep.

Presenter:    And how old were you when you were at the crèche?

Nathan:         I would have been about four I think.

Presenter:    And you were never interviewed as part of the civic crèche case?

Nathan:        No.

Presenter:    So you weren’t … is that because at that point you’d never told anyone?

Nathan:        Yeah.

Presenter:    How old were you when you told mum and dad?

Nathan:        16 I think.

Presenter:     It’s a long time …

Nathan:         Mmm, yep, a long time.

Presenter:     So what happened in those years?

Nathan:         A lot of confusion I think. I didn’t really know what to do or who to, you
                     know … How to talk about it.

Presenter:     Did you … How old were you when you worked out you’d been abused?

Nathan:         Ah, I would have been about 14.

Presenter:     So up until that time, from four to 14 did you feel there was something wrong?

Nathan:        Yep.

Presenter:     Tell me about that.

Nathan:         Um, well I mean, you know things … I knew things that children my age
                     shouldn’t have known and you know, you can just … you know there’s
                     something wrong.

Presenter:     You knew things about sex you mean?

Nathan:         Yeah, yeah.

Presenter:     And these are things that you would never have heard at home?

Nathan:         No, no that’s for sure.

Presenter:     Or you hadn’t seen on TV?

Nathan:         No.

Presenter:     Or on videos?

Nathan:         No, they don’t show that sort of thing on TV.

Presenter:     So at 14 what happened?

Nathan:        
Um, when I was 14 it was sort of when I first started becoming more social with friends and with girls and that sort of thing and that’s when it sort of started to hit me the worst because you know, I sort of started to realise that I wasn’t on a … wasn’t really a normal, to use the sort of strange term but wasn’t really a normal teenager. You know, when I looked at the way that my friends reacted to some things and the way that I reacted, you know, I knew that I had to deal with it.

Presenter:     Give me an example? What do you mean, the way you reacted?

Nathan:        
Socially with … Like I mean I went to a boy’s school. When I was 14, 15 and we started … The friends that I made there, we started socialising with girls at parties and that sort of thing and it scared the living heck out of me to the point where you know, I knew there was something wrong.

Presenter:     So if a girl tried to kiss you or touch you what would happen?

Nathan:        
Ah, I’d freak out. I mean there’s other situations where it’s a lot more difficult for example going to a boy’s school that was quite involved in sport, I couldn’t handle playing sport or doing P.E. because of the changing rooms and that side of things.

Presenter:     You didn’t want to go in the changing rooms?

Nathan:         No.

Presenter:     Was it the changing rooms or was it getting changed?

Nathan:         Um, getting changed.

Presenter:     You didn’t want anyone to see you?

Nathan:         Um, yeah, yeah, I suppose that’s how you’d … you know it’s just an uncomfortable
                     situation to be in.

Presenter:     So you’re 14 and you realise that you’re different from everybody else around you and you think
                     this is something I need to deal with and then what happens?

Nathan:         Um, it just got … got worse and worse over the next two years as I …

Presenter:     In terms of how you felt?

Nathan:        
Yeah, in terms of how I felt and you know, because I was becoming more and more socially involved with girls and you know, that sort of early teenage sort of introduction to the whole sex side of things and …

Presenter:     Well, all your mates are going to parties?

Nathan:         Yep, yep, it just you know … it makes it very, very difficult to try and ... to fit in.

Presenter:     When did you tell your mother?

Nathan:        
Um, one morning before school. I think my father was giving me a lift into school at that time and I didn’t go to school that day because I was quite upset. Mum came in and asked me what was wrong and it took me … took me a few hours to sort of decide that you know, it was right to tell her.

Presenter:     So you must have been weighing that up for a long time?

Nathan:         Yeah.

Presenter:     Trying to find the right time?

Nathan:         Yeah, it’s not something that you know, you can sort of bring up in … even in a really good
                      family environment it’s not something you can bring up just out of the blue.

Presenter:     So what did you say to her?

Nathan:         Um, I just asked her if she, you know, remembered me going to the crèche and that
                     something had happened but I never really went into detail with her.

Presenter:     Till later?

Nathan:         Mmm, yep, it was quite a bit later.

Presenter:     You know that Peter Ellis has always denied that he touched any of the children
                      inappropriately at the crèche?

Nathan:         Yep.

Presenter:     And he still denies it.

Nathan:         Yep.

Presenter:     And the women who worked with him say that it could never have happened.

Nathan:        
Well, I suppose they’ve got to say that really, don’t they? I mean anything is possible and I mean, of course he’s going to deny it and you know, I can’t see how … I can’t see how they can deny it. It’s hard enough living with having it happen to you let alone being the person that’s done it to all these children. I don’t see how he you know … how he gets on with himself.

Presenter:    
You’ll know because we all do, Lynley Hood has written this book, it’s called A City Possessed and she says that the children at the crèche who are so convinced that they were touched and abused by Peter Ellis have been … have got false memories, that they’ve been manipulated into thinking that by their parents or by counsellors and by psychologists.

Nathan:        
I never really had much to do with any of the case at all so I mean I don’t really know the processes which they went through but I know that they … you know, she sort of says that oh, some of the things that they have said are so far fetched that you know, it’s impossible, but children believe in Santa Claus so you know, I can’t see how they can say that it didn’t happen when you know, children are impressionable but they’re not … I mean you can’t just say to a kid well, did this happen and they getting all the details. I mean kids that age don’t know that sort of thing.

Presenter:     So you …

Nathan:         And I don’t you know … you can’t … you can’t teach them that sort of thing just by
                     asking them about it.

Presenter:     Your mum is listening to this conversation. Let’s bring her in. Nice to have you on the programme.

Mother:         Good morning, Linda.

Presenter:     It must be very difficult for you to hear your son talk about this, even after so many
                     years of having dealt with this as a family?

Mother:        
It is. It’s very difficult and I know that he has some very hard moments in his life even now, with nightmares. He wakes up in the middle of the night having nightmares and he gets out of bed and he vomits, and he has done this for a long, long time. As he said, when he was 16 he told me about it but I actually took him away from the crèche because I suspected there was something untoward going on at the time and he was only at the crèche for a very, very short time when he was four going on five. Some of the things that I had noticed when he … we took him to the crèche. We lived out in the country and he had been to a pre-school prior to going to the crèche and this was the crèche in the old Dux Deluxe centre, not the other crèche at the Cramer centre I think it was. First of all we noticed he …. After a very short time being at the crèche he was very reluctant to go to the crèche. When we would come into the city he would hang onto the car door when I tried to … when we arrived at the crèche he would hold onto the car door until his little knuckles were white. He’d scream. He didn’t want to get out of the car. When I got him to the gate of the crèche he’d hang onto the rails with his hands and put his feet on the rails and scream and say no, no. And we thought at the time, both my husband and myself that you know, he was just reluctant to be away from us and yet we’d never had this problem before. I also noticed that some of the children in the playground and the playground at the time was open to the carpark in the arts centre, they’d be playing in the playground with either no knickers or no clothes on and I disagreed with that and told the crèche staff at the time that under no circumstances was my son to go without his underclothes or to be fully undressed and … because of sunburn and people hanging about the crèche because at the time my daughter was in a ballet school in the arts centre and the dance teacher had told the parents not to bring the children into the arts centre in leotards and tights because they were having problems with some strange people hanging about the toilets and the things, so I was aware of this problem that they had in that area and I insisted that he didn’t go without his clothes in the playground or without knickers. And I had taken a big pile of knickers into the crèche for him to wear at the time and said that you know, some were his older sisters hand-me-downs and some were his own and I said that they would … to keep them there and if he did have an accident of any sort, that they were to keep him dressed. He was toilet trained at two. He never wet the bed by the time he was two, completely toilet trained but when he was at the crèche he started to go back. While he was at the crèche also he started having nightmares. He’d wake up in the middle of the night screaming and complaining that he had a greasy bottom and we couldn’t make this out. We thought perhaps he’d got hot and sweaty during the night but we found out later on what that was about when Nathan told us. An older sister who was in a polytech course had to go and … had to stay with him for the whole day because he was so distressed when she took to him to the crèche one day she was about 18 at the time, and she said he was just so distressed when he … when she took him there that he … that she stayed with him for the whole time.

Presenter:    
So for these reasons you withdrew your son from the crèche after a relatively short period of time?

Mother:        
No, that wasn’t all. I think another day he came home from the crèche or he comes back to my business and told me that he had been taken to a house by some of the crèche staff and I wasn’t happy about that. And he also told me another day that he’d been taken to a park by crèche staff. He also came home from the crèche with a very sore penis and we took him to our doctor who sent us to a urinologist and we also went to see Dr Casely [phon], a paediatrician in Christchurch and they couldn’t figure out what was going on.

Presenter:     Did you suspect abuse at this point in time?

Mother:        
No, I didn’t. That was the last thing I thought of. We all … he also told me that he and another little boy had run away from crèche staff and hidden in the cupboard. He was very distressed, unhappy, he still didn’t want to go to the crèche and in the end I think the last straw was two crèche staff, a man and a woman and the man was Peter Ellis, brought him back to my business. Peter Ellis stood at the end of the window of my shop and the woman pushed him through the door and took off with no explanation of why they should be bringing him back into my business. He was supposed to be in the crèche till five o’clock and this was about three thirty in the afternoon and they just pushed him in the door and left him.

Presenter:     And you’re absolutely sure that the man who did that was Peter Ellis?

Mother:         It was Peter Ellis.

Presenter:     Because this is one of the things I need to ask you in terms of the chronology of this.
                     This is all at the end of 1985, is that right?

Mother:         Yes, that’s right.

Presenter:     Because according to Lynley Hood’s book, Peter Ellis didn’t begin working at the crèche
                     until 1986.

Mother:        
Yes, I know and I’ve been through that with the Police. The Police said at the beginning when we went to the Police they said that no, it couldn’t have been Peter Ellis because he wasn’t employed there then, but they came back to me later on and said no, we have a very reliable witness who says yes, Peter Ellis was associated and hanging out with people at the crèche at that time.

Presenter:     So maybe not working there?

Mother:         Maybe not working there.

Presenter:     But associated with the crèche at that time?

Mother:         Yes he was.

Presenter:    
And you’re not … I don’t want to labour the point but you’re in no doubt that the man you saw with your child when he came to your business was Peter Ellis.

Mother:         No doubt at all.

Presenter:    
When your son told you … he’s 16 years of age and he told you that he had been abused, at that time did he tell you it was Peter Ellis that was the abuser?

Mother:        
Yes. When he told me he was going through a lot of difficulties at the time. He wasn’t happy at school, he wasn’t settling down at school. He was just a very, very unhappy teenager and we were worried about him and had actually been to see his school counselor and I had found a note in his bedroom when I was cleaning that I wasn’t … that really distressed me and gave me cause for concern and we went to see his school counselor and the morning he talks about, he … his father used to take him to … drop him off at school before he went to work and this morning he didn’t want to go to school, he was upset and I had rounded on him because he wasn’t … he’d decided he was going to leave school and not sit his bursary exams and he was … I gave him a bit of a dressing down and he went to his bedroom and he was there for a while and I went up to see if he was all right and he was just sitting on the bed breaking his heart and I sat down beside him, put my arm round him and said to him, what on earth is the matter? You know, what has upset you so much? Surely you know, the ticking down I’d given him, I didn’t think it was that bad. And he told me, he said to me it’s what you have always suspected mum, he said it’s the crèche. And I said to him what do you mean the crèche and he told me that … he told me different things that had happened to him at the crèche and he drew me a picture of the room that he’d been taken to in this house, where the furniture was, where the door was and he had very good recollection of what had happened.

Presenter:    
So when he said to you in that conversation it’s what you always suspected mum, had you raised this as a possibility with him before?

Mother:        
Um, well I … when I took him away from the crèche I’d gone down to the crèche to see the staff and asked for an explanation why he was taken away from the crèche and had been at somebody’s house and also why he had been dropped back at my shop in the afternoon when … by these two people when he was supposed to have been at the crèche until five o’clock. They sort of ganged up on me and pushed me into a corner and sort of … I felt very, very intimidated and they told me that I couldn’t take him out of the crèche until the end of the term because he was booked in till the end of the term and I just said look, he’s extremely unhappy, I’m not unhappy … I’m not happy with what is going on here, what I … you know, various things I’d seen and I said I don’t care what you say, I’m taking him out of here. And that was the last time I … that was the last time he went to the crèche. From there he went to the Christchurch Polytech crèche and he settled down there and was perfectly happy. We never had any problem with him going there.

Presenter:    
But in the intervening years when it was clear that as he’s told us himself, that he didn’t feel like other kids and he was having difficulties and stresses …

Mother:         Yes, well we …

Presenter:    
Did you ever raise with him the possibility that something might have happened to him at the crèche?

Mother:        
Yes I did once. We never suspected that and he seemed to be you know … sort of pick up a bit after we took him away from there. We moved away from Christchurch to South Canterbury when he would have been about six. He went to a new school and was … and we did … we never had any contact with anybody from the crèche, any other parents or anything like that. We were living in South Canterbury when the thing broke, when Peter Ellis was actually charged. We didn’t really know about it and it was only really by accident that I found out about it. One night I went upstairs to see the news and Nathan came up with me. I turned the television on and Peter Ellis was walking towards the camera on a news clip and Nathan came into the room, saw Peter Ellis on the television and he just stopped dead in his tracks, he went as white as a sheet and he said to me, I was at that crèche, I was at the crèche. He said nothing happened to me, nothing happened to me and he ran away and hid. He ran out across the veranda and hid in a tree until it was dark and I thought yes, something has happened here. And later on that night I took him aside and I sat him down and said to him, when you were at the crèche did anything happen to you? And he pulled away from me and said no, no. And I thought well, we’ll just leave it at that. The next day I rang the … Brian Pearce at the Christchurch police station and he said to me you can come up and talk to me about it if you like. I came to Christchurch within … shortly after that. I spoke to him and I spoke to a lady, I thing it was Jen Crossan [phon] who was a social worker working on the case and I asked her what I should do. You know, I told her what my suspicions were and how I’d taken him away from the crèche for various reasons and she said do nothing, she said don’t ask him again. She said you’ll just have to wait until he’s ready to tell you. She said don’t ask him, don’t mention it.

Presenter:     And that’s what you did?

Mother:        
And that’s exactly what I did. I never asked him again, we never brought it up and we never … we never … he never watched it on television or anything like that and we didn’t really follow the case because we were extremely busy …

Presenter:     All right, let’s come back …

Mother:         In the business that we had.

Presenter:     Let’s come back to your son. Your mother said to us there that you’ve been to the
                     police with this information. You went to the police last year?

Nathan:         Yep.

Presenter:     And what happened when you went to the police?

Nathan:         Um, they of course went through their investigation process.

Presenter:     So they interviewed you?

Nathan:        
Yep, and things became quite difficult I believe for them because of the whole publicity of it and the political side of things and they assured me that you know, they wholeheartedly would like to be able to do something but I believe it’s a bit risky for them to go ahead with anything just on my evidence alone because of the fact that there’s so much publicity for him that it would be very, very silly to go ahead with anything unless you know, it was 200% sure to nail him.

Presenter:     Would you like to press charges?

Nathan:         Mmm, yeah I …

Presenter:     Your family have looked at a private prosecution?

Nathan:         Um … pass.

Presenter:     OK. They … if you … so the police say that they can’t … they’re not
                     proceeding. I mean there’s not going to be a police case?

Nathan:         Not at this stage. They don’t have enough evidence from me alone to be able to get
                     a rock solid case … (indistinct)

Presenter:    
Well and anyway he’s served seven years inside and he’s been found guilty of … I suppose that’s part of the logic isn’t it, in relation to the crèche … in relation to what happened at the crèche?

Nathan:         Yeah, I wouldn’t really call it logic but I suppose you could say that he has served
                     some time for what he did.

Presenter:     What do you think of this campaign … you mentioned it a little earlier, this campaign
                     to clear Peter Ellis?

Nathan:        
I think … it baffles me as to how he can afford to do it for a start. I mean I know that I sure as heck can’t afford or couldn’t afford to … one of the best or most … Probably one of the most expensive lawyers in the country and yeah, I … I can understand though why he has so much public support because there’s never been anything said for the children as you know, on the greater scale that is being done for him um, which is kind of tragic really.

Presenter:     Your mother said that you had as a child, and even now, you have nightmares?

Nathan:         Yeah.

Presenter:     You still have nightmares?

Nathan:         Yep.

Presenter:     Do you still wake up and vomit?

Nathan:        
Yep. Yep. Probably every second or third night at least. Um, it’s … yeah, kind of makes it interesting. I’ve been … I’m now married but it’s … luckily I’m very, very lucky to have … such an understanding loving wife because there’s a lot of things that as a wife she has to deal with as well and that’s definitely one of them, you know, because she more often that not wakes up with me and I mean I can’t imagine how hard it must be for her to deal with it.

Presenter:     Can you imagine getting over this?

Nathan:         Yeah, maybe one day.

Presenter:     Because it must feel like it’s with you forever?

Nathan:         It certainly does when you know every, second day or every second week it’s
                     brought up again and rubbed in your face.

Presenter:     So it’s painful to see Peter Ellis on the television?

Nathan:        
Yeah, and I mean it’s not just the television it’s you know, the newspapers, the radio, the people talk about it, you know. I mean even at jobs I’ve had and that, people have been … it’s been in the newspaper or the news and whatever and people are sitting round in the smoko rooms talking about it and you know … and I mean they’re totally unaware and they turn to you and ask you for your opinion but I mean you know, how do you deal with that to these people that you don’t really you know … you know I mean, I … a lot of the people that I’ve worked with have been older than me so I’ve never really socialised with them at all and it’s quite difficult to you know, deal with that when you know, I mean you don’t really want them to know but you, you know, you can’t just sort of sit there.

Presenter:     Would you like there to be Royal Commission to clear this up once and for all?

Nathan:        
Um, that depends. I mean there’s so much publicity and crap surrounding this thing that you know, I can’t really see how it could be a fair one. I mean particularly if some of these people that have signed this thing for him or saying that you know, something needs to be done, are on the board or the panel or whatever hears it because you know, it’s just … all people who have ever heard it this whole time has been his side of the story and that’s what a lot of them are basing their opinions on. I mean that’s what that woman wrote a book about so you know, how can you … how can you really do any justice when you know … the public’s got such a one-sided attitude.

Presenter:    
But without a Royal Commission it’s not going to go away, is it? You’re still going to be picking up the paper and seeing his face from time to time and he’s still going to be on the tele and he’s still going to be on the radio and it’s still there?

Nathan:         Yeah, exactly. That’s why I mean it’s a hard one to call really.

Presenter:     And he’s never going to admit he did it.

Nathan:        
No, no, that’s for sure. I mean he couldn’t … couldn’t now anyway after all these bloody years but um, it would be nice but I mean, as far as I’m concerned he hasn’t you know … he hasn’t served enough time.

Presenter:     Were you abused by more than Ellis?

Nathan:         Yeah, yep.

Presenter:     Were other children there at the same time?

Nathan:         Yep.

Presenter:     Do you know whether those were the children that were involved in the court case
                     or not? I’m, thinking they probably aren’t because of the time?

Nathan:         Yep, I have no idea. I’ve never … never contacted any of the children or anything from
                     when I was there and I’ve never really you know, wanted to dredge all that up again.

Presenter:     Let’s come back to your mother finally. You … I mentioned a private prosecution a little
                     earlier and your son was obviously a bit surprised by that, but you have considered
                     it haven’t you?

Mother:        
Yes we have. When Nathan told me, or my son told me, about the crèche, I asked him what he’d like to do about it. I said to him … and he said what were his options and I said well, we could go and we could go and talk to our doctor which we did and she talked to Nathan and recommended counseling. He had some counseling at the time. We also went to the police and we actually went to the police four years ago and they have been to-ing and fro-ing for the last four or five years. We went … when he was about … not long after he told me we went to the police and we have waited for quite a long time and finally this year they told us that due to public opinion being swayed, half the population believed he was innocent, half believed he was guilty, there’d been a lot of money spent on the case, it was historical. They gave all sorts of reasons why they weren’t going to visit it again but they said they wouldn’t close the case, they would hold it open and if any other children come forward they would revisit it then. I think they did try to see Peter Ellis and they had sent it to the Crown Prosecutor out of Christchurch who weighed everything up and we met with him and discussed it with him, my husband, myself and my son, and his … he came back with the opinion that you know, public opinion was divided, it was historical. there’d been a lot of money spent on the case.

Presenter:     So what do you want to want to happen now?

Mother:        
We have also seen a solicitor. I would like ... and I know my son too would like ... Peter Ellis to admit what he did and to show some repentance for what he did to not only my son but to other children as well. There are other things here that are probably ... my son doesn’t want to go into right now but there are other ongoing health problems that ... he’s suffering all the time and I just think that it’s a life sentence. He can deal with it but it will never be dealt with.

Presenter:     And somewhere you must feel guilty about this too, do you?

Mother:        
I do. I feel very guilty that I actually chose the crèche to go to and he feels very, very guilty. He told me not long after that he initially told me that what really upset him the most was the fact that he was one of the older children and had he told when he was there, a lot of these other younger children wouldn’t have been abused and I said to him that that is not your baggage.

Presenter:     Do you really think that? That you could have stopped it?

Nathan:         Mmm.

Mother:        
He felt that. He felt that had he told somebody then he would have saved a lot of these other children from abuse and I said to him you cannot feel guilty for that and he … that does upset him a lot.

Presenter:     Well, I appreciate you both joining us for this conversation and I know it’s been a
                    difficult thing to talk about.

Mother:         Very difficult.

Presenter:    
As I said at the outset, we pre-recorded that interview, clearly for legal reasons, and we haven’t … we have deliberately not used the name of the boy although his mother there referred to him by his first name Nathan, and that was at the wishes of the family.

Ends.

Appendix II

The Authority received and considered (through the parties’ lawyers) the following correspondence when it determined this complaint:

1. Peter Ellis’s Formal Complaint to Radio New Zealand Ltd – 28 August 2003
2. RNZ’s Letter to Mr Ellis – 8 September 2003
3. Mr Ellis’s Letter to RNZ – 30 September 2003
4. RNZ’s Letter to Mr Ellis – 2 October 2003
5. Mr Ellis’s Letter to RNZ – 3 October 2003
6. RNZ’s Response to Mr Ellis’s Formal Complaint – 22 October 2003
7. Mr Ellis’s Referral to the Broadcasting Standards Authority – 17 November 2003
8. RNZ’s Response to the Authority – 26 January 2004
9. Mr Ellis’s Comment to the Authority – 23 February 2004
10. RNZ’s Second Response to the Authority – 25 March 2004
11. Mr Ellis’s Submissions to the Authority – received by the Authority on 3 May 2004
12. RNZ’s Submissions to the Authority – 24 May 2004
13. Mr Ellis’s Submissions to the Authority – received by the Authority on 3 June 2004
14. RNZ’s Submissions to the Authority – 16 June 2004
15. Mr Ellis’s Submissions to the Authority – 23 June 2004
16. RNZ’s Further Comments to the Authority – 25 June 2004
17. Mr Ellis’s Final Comments to the Authority – 29 June 2004

¹Lynley Hood A City Possessed: the Christchurch Civic Crèche case, Longacre Press, Dunedin, 2001, at
  p 33
²Above n 1, 33
³“Ellis case transcripts go public”, Sunday Star Times, 3 August 2003
⁴www.radionz.co.nz
⁵Principle 6 and Guideline 6c of the Radio Code of Broadcasting Practice provide:

In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.

6c   Factual reports on the one hand, and opinion, analysis and comment on the other,  
      shall be clearly distinguished.

⁶See Appendix II. Two of RNZ’s further submissions were made through its lawyers (dated 24 May 2004
 and 16 June 2004) and all five of Mr Ellis’s further submissions were made through his lawyers.
⁷Section 19A precludes a complainant under the Act from admitting in evidence in any other judicial
 proceedings a broadcaster’s response to the complaint.
⁸Conferred by s.12 of the Broadcasting Act 1989.
⁹The rule that a newspaper is not obliged in interlocutory proceedings to reveal its sources. The rule is
 the basis of Rule 285 of the High Court Rules.
¹⁰Mr Toogood was co-opted under s.26(4) of the Broadcasting Act.
¹¹Closed questions are those which invite a “yes” or “no” answer, in contrast to open questions which
   invite the interviewee to provide additional information. A leading question is one which attempts to
   guide the interviewee’s answer.
¹²The Authority notes here that the Radio Code of Broadcasting Practice was prepared by Radio New
   Zealand Ltd and, on behalf of commercial broadcasters, the Radio Broadcasters Association, and
   approved by the Authority.
¹³Guideline 6b of Standard 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice
   states: “Contributors and participants in any programme should be dealt with fairly and should, except
   as required in the public interest, be informed of the reason for their proposed contribution and
   participation and the role that is expected of them”.
¹⁴See for example Decision No: 2002-148.

2004-115