BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Campbell Live – story about a man convicted of defrauding ACC who later successfully appealed to the Supreme Court – allegedly unbalanced and inaccurate

Findings
Standard 4 (balance) – item focused on one man and his successful appeal to the Supreme Court – touched on criticisms of ACC’s conduct which could be controversial and of public importance – broadcast statement from ACC addressing criticisms – not upheld

Standard 5 (accuracy) – item omitted information that may have been useful – but did not contain any inaccuracies which amounted to a breach – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on Campbell Live, broadcast on TV3 at 7pm on 12 June 2009, featured a man who had been convicted of defrauding ACC, and later won an appeal to the Supreme Court. The presenter said that the man had been identified as part of ACC’s “routine search for fraudsters” and had been “dragged into a kind of vortex”.

[2]   The item discussed the background of the man’s conviction and his experience in prison. It included comment from the man, his lawyer, and an ACC law specialist, as well as a short statement from ACC. The reporter asserted in the story that:

It’s unlikely that it ever would have made it to trial in the first place had ACC heard [the man’s] appeal to get his weekly compensation reinstated back in 2005. When ACC finally held that review some three years later, they found that [he] actually was entitled to his weekly compensation.

[3]   The man’s lawyer stated that his client “didn’t get a fair trial”, and an ACC law specialist commented that ACC’s handling of the situation had demonstrated “a complete abuse of process”. The statement that was read from ACC said:

ACC stands by its decision to investigate [the man] and refer his case to the Crown Solicitor for consideration for prosecution. This was done in the best interests of New Zealand’s ACC levy-payers and their expectation that ACC will protect public funds from fraudulent behaviour.

Complaint

[4]   FD made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item was unbalanced and inaccurate because the programme depicted how the “totally innocent” man had been suddenly caught up in a “vortex” when he was charged and convicted.

[5]   FD maintained that the man’s deposition hearing had found “overwhelmingly sufficient evidence” to proceed with a court case. At his trial, 22 witnesses gave evidence against him, FD said, he was found guilty on 34 counts and was sentenced to three years imprisonment. The complainant noted that in his summing up the trial judge commented on the man’s “blatant dishonesty”.

[6]   The complainant claimed that the Supreme Court allowed the appeal on a “technicality”, and that the court had not said the man was innocent of the crimes for which he was originally convicted. FD stated that he objected to the programme “depicting a person as totally wronged and convicted by ACC and our judicial system when this is blatantly untrue”. FD maintained there was a “mountain of evidence to the contrary” and that the programme was biased and was constructed to gain sympathy.

Standards

[7]   TVWorks assessed the complaint under Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining 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.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Broadcaster's Response to the Complainant

[8]   Looking at Standard 4 (balance), TVWorks argued that the item did not discuss a controversial issue of public importance, but focused on the experience of one man. Regardless, it considered that the story was balanced. TVWorks said it was not a story about the man’s original case, although it contained a brief summary of the facts. It agreed with the following comments provided by the reporter:

The point of our story is that ACC delayed dealing with [his] civil case – by which ACC would determine whether or not he is entitled to have his ACC reinstated. If they had heard [his] civil case in 2005, ACC would’ve found that [he] was entitled to have his ACC payments reinstated. As it was ACC came to this decision when they got around to hearing his civil case some three years later. But, in the meantime, they’d prosecuted him. If [he] was in fact entitled to his weekly payments then he couldn’t have “stolen” them. This is what turned the tide in [his] case. It led to the Supreme Court ruling, which quashed [his] conviction.

[9]   TVWorks noted that ACC was given the opportunity to comment and a statement from ACC was included in the report. It concluded that the balance standard was not breached.

[10]   Turning to accuracy, TVWorks argued that the points raised by the complainant related to the original case which was not the focus of the item. The item focused on ACC processes as opposed to the facts of the original case, it said, and was sparked by the Supreme Court’s decision two weeks earlier.

[11]   The broadcaster maintained that the item accurately reported the outcome of the original case, the outcome of the ACC review and the outcome of the Supreme Court hearing. It said that it understood that “there was doubtless much in the original trial that was relevant to the alleged offending however the story was not about that original verdict but about process. This was a valid review given the outcome of the Supreme Court appeal”.

[12]   TVWorks concluded that the item did not contain any inaccuracies and declined to uphold the complaint.

Referral to the Authority

[13]   Dissatisfied with TVWorks’ response, FD referred the complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[14]   First, the complainant argued that, contrary to the presenter’s statement, the man in the item “was not caught up in a routine search for fraudsters. ACC started receiving specific complaints from the public as early as 1993–94”, and that the man was aware of the complaints.

[15]   FD considered it was inaccurate for the man to appear surprised at the verdicts from the original trial, because FD maintained the man’s lawyer had told the man that it was a bad sign for the jury to have gone through their verdicts one by one as it meant they had considered each charge carefully. The complainant contended that the man during the trial had admitted that most of the evidence given by the witnesses was “probably true”, and he admitted he had been doing heavy work around his property.

[16]   FD argued that the item was inaccurate because it did not mention that the man’s payments had also been stopped in around 1998–2000. With regard to the ACC law specialist’s statement that ACC was persecuting someone “they should be rehabilitating”, the complainant maintained that ACC had offered extensive and ongoing support including pain clinic appointments and many specialists.

[17]   FD argued that the reporter was inaccurate in stating that “it is unlikely that the case would have made it to court if ACC had allowed his appeal to be heard in 2005”. The complainant maintained that ACC was already aware of many complaints about the man’s activities before 2005 and had previously stopped his payments in the mid 1990s and around 2000, and had hired a private investigator to monitor him. After three years of investigation, ACC sent the file to the Crown Law office to ascertain whether there was enough evidence to go to trial.

[18]   The complainant also considered it was inaccurate to say that ACC had found the man was entitled to weekly payments “but in the meantime he had been sent to prison”. FD said this was out of context of the timeline of activities of the three-year investigation, perusal by the Crown Law office, one-week deposition hearing and three-week trial.

[19]   FD considered that the programme should have substantiated the statements made and presented the other side of the story. FD said the reporter should have investigated press coverage of the trial and subsequent appeals, the transcripts of the deposition hearing and the trial, and the views of the witnesses. Further, the complainant argued that TVWorks was incorrect in saying the story did not focus on the original trial, maintaining that the item should have provided true historical background.

[20]   With regard to balance, the complainant considered that, because the Supreme Court case set a precedent, it was controversial and in the public interest. FD said it was also “a topic of huge concern across the wider population who are facing ongoing increasing costs for ACC”.

Broadcaster’s Response to the Authority

[21]   TVWorks provided a copy of the broadcast and of FD’s original complaint. It made no further comments.

Complainant’s Final Comment

[22]   FD reiterated the arguments made in the referral.

Further Comments from the Broadcaster

[23]   TVWorks provided further comments with reference to the Supreme Court decision relating to the man who featured in the item. It attached a copy of the decision, which it considered “put out of all contention” the complainant’s argument that the man “at best got off on a technicality due to the Crown prosecutor’s statement at the summing up”. TVWorks said that the Supreme Court found that there had been a substantial miscarriage of justice, not just in relation to the comments of the prosecutor but also on the basis of the ACC review finding that there had been no proper basis for suspending weekly compensation.

[24]   The broadcaster maintained that the Campbell Live item was “a relatively straightforward report of the outcome of a court case which involved scrutiny of the process followed by ACC”. It provided comments from the reporter stating:

In the Supreme Court, [the man’s] 34 convictions for using a document dishonestly to obtain a pecuniary advantage were set aside and no retrial was ordered. It was not just a technicality as [the complainant] claims. The court found that there had been a substantial miscarriage of justice. He was sentenced to three years imprisonment in April 2007 on the basis that he had received weekly compensation that he wasn’t entitled to. But when ACC finally heard his appeal to get his compensation reinstated, they found he was entitled. Therefore our comment in the story it is “unlikely that it would ever have made it to trial had [the man’s] appeal been heard in 2005”, and the comment by [the ACC law specialist], “and if you can be entitled to something how can you really steal it?” is accurate.

[25]   TVWorks submitted that the complaint should not result in a retrial of the original case or a review of the findings made by the Supreme Court, which it considered was what was sought by the complainant. It concluded that the item was accurate, and that it did not discuss a controversial issue because it focused on the experiences of one man. The broadcaster considered that, even if the item did discuss a controversial issue, it was balanced because the only other significant point of view was that of ACC and a statement from ACC was included in the story.

Further Information Requested from ACC

[26]   Noting the statement in the item that “It’s unlikely that it ever would have made it to trial in the first place had ACC heard [the man’s] appeal to get his weekly compensation reinstated back in 2005”, the Authority asked ACC why the man’s appeal was not heard until 2008 if it was launched prior to 2005. The Authority acknowledged that ACC may not be able to answer in relation to that specific case, but asked for a general response as to whether it was ACC’s policy not to hear such an appeal if an investigation or prosecution process was underway.

[27]   ACC stated that it could not comment on the specific case without a privacy waiver from its client. However, it confirmed that:

ACC’s fraud and claims management teams generally operate separately until such time as fraud can be proven, in other words we treat people as innocent until proven guilty. If the fraud team finds something that shows the person should not be getting help from ACC then they will work with the claims team.

Further Information Requested from the Broadcaster

[28]   The Authority asked TVWorks to respond to the complainant’s argument relating to the statement in the item that the ACC client was investigated as part of ACC’s “routine search for fraudsters”, as opposed to being investigated as a result of specific complaints.

[29]   The broadcaster provided a response from the reporter, stating:

My understanding is that ACC does routinely investigate long-term ACC recipients. They also receive complaints about their clients all the time. It’s very common for members of extended family or ex-colleagues etc to take issue with someone on ACC and ring in when they see them doing something the person thinks they shouldn’t be able to do. In [this man’s] case, there were specific complaints.

Authority's Determination

[30]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 4 (balance)

[31]   Standard 4 requires broadcasters 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.

[32]   In the Authority’s view, the item focused on one man’s experience with ACC and his successful appeal to the Supreme Court, which in itself did not amount to a discussion of a controversial issue of public importance. The Authority has previously found that Standard 4 does not apply to programmes focusing on individual stories (see Egg Producers Federation and TVWorks¹).

[33]   The Authority accepts that the story touched on criticisms of ACC’s conduct which were potentially controversial – namely, that the man’s trial would not have gone ahead if ACC had heard his appeal in 2005, and that ACC had delayed hearing the appeal so that it could prosecute the man. However, to the extent that the item raised these points, the Authority is satisfied that ACC was given a reasonable opportunity to present its perspective and provide balance. The criticisms were put to ACC and Campbell Live broadcast the statement provided by ACC’s director of operations.

[34]   The Authority notes that the complainant’s concern about balance was that the item did not include details of the man’s original trial. It finds that this was not necessary to meet the requirements of Standard 4, because the Supreme Court decision had rendered the earlier trial largely irrelevant. The item was not seeking to re-litigate the man’s case; it was a response to the outcome of both the Supreme court decision and an ACC review which had found that there was no proper basis for the suspension of the man’s compensation.

[35]   Accordingly, the Authority declines to uphold the complaint that the item breached Standard 4.

Standard 5 (accuracy)

[36]   Standard 5 requires that news, current affairs and other factual programmes be truthful and accurate on points of fact, and impartial and objective at all times. The complainant alleged that a number of aspects of the item breached Standard 5.

[37]   At the outset, the Authority notes that the story was told from the perspective of the man featured and was therefore highly sympathetic to him. However, the standards do not prevent personal stories being told in this way. The question for the Authority is whether any aspect of the item was misleading or inaccurate.  It deals with each of the points raised by the complainant below.

Statement that the man had been part of a “routine search for fraudsters”

[38]   FD maintained that this statement was inaccurate because the man featured in the item had been investigated as a result of specific complaints to ACC, not as part of a “routine search”. The complainant has not provided any evidence to support his argument, although the reporter’s response of 24 September 2009 accepted that, “In [this man’s] case, there were specific complaints.”

[39]   In the Authority’s view, the presenter’s statement was a statement of fact to which the accuracy standard applied, and, based on the reporter’s response, it considers that the statement was not accurate. However, it finds that the statement was not material to the focus of the story, which was that the Supreme Court was satisfied that there were grounds to overturn the man’s conviction, and that an ACC review had found that the man was in fact entitled to weekly compensation. The Authority considers that the manner in which the investigation was initiated, whether through a routine search or as a result of specific complaints, was incidental to the outcome of the case.

[40]   Accordingly, the Authority concludes that upholding this aspect of the complaint as a breach of the accuracy standard would unreasonably restrict the broadcaster’s right to freedom of expression. It therefore declines to uphold this part of the Standard 5 complaint.

The man’s comment that “I was standing in the dock there and the foreman stood and started off not guilty, not guilty, for 25 charges, and then all of a sudden it went, guilty, and my head, it just went down. I was just, humiliated, this can’t be right.”

[41]   The complainant c[onsidered it was inaccurate for the man to appear surprised at the verdicts from the original trial, because FD maintained the man’s lawyer had told the man that it was a bad sign for the jury to have gone through their verdicts one by one as it meant they had considered each charge carefully.

[42]   In the Authority’s view, the comment was not a statement of fact to which the accuracy standard applied, but was the man’s recollection of his own experience at the trial. The Authority therefore declines to uphold the complaint that the comment breached Standard 5.

The omission of the fact that the man’s payments had also been stopped in 2000

[43]   The complainant argued that it was inaccurate to not state in the item that the man’s payments had also been stopped in 2000. FD did not provide any information to support this assertion.

[44]   The Authority considers that, even if it were true, the omission of this information did not lead to the item being inaccurate or misleading, as the focus was the outcome of the Supreme Court appeal, and whether in light of that decision and the ACC review the man should ever have been prosecuted. The item did not purport to be an exhaustive presentation of the man’s history with ACC. Accordingly, the Authority does not uphold this aspect of the complaint.

Comment that ACC was “persecuting the person they should be rehabilitating”

[45]   The complainant maintained that ACC had offered the man extensive and ongoing support including pain clinic appointments and many specialists, so the comment was inaccurate.

[46]   The Authority notes that the comment was made by the ACC law specialist interviewed for the item. It considers that the comment was clearly his opinion about ACC’s conduct, and not a statement of fact to which the accuracy standard applied. It therefore declines to uphold this part of the complaint.

The reporter’s statement that “it is unlikely that the case would have made it to court if ACC had allowed his appeal to be heard in 2005”

[47]   FD argued that this statement was inaccurate because ACC was already aware of many complaints about the man’s activities before 2005 and had previously stopped his payments in the mid 1990s and around 2000.

[48]   In the Authority’s view, the statement, which was qualified by the use of “unlikely”, was in the nature of speculation or opinion, rather than being a statement of fact. The complainant has not provided any evidence in support of his argument, and seems to have relied on hearsay and what he believed ACC was doing in relation to the case between 1993 and 2008. The Authority therefore declines to uphold the complaint that the reporter’s comment was inaccurate in breach of Standard 5.

The statement that ACC found three years later that the man was entitled to weekly compensation, but “in the meantime he had been sent to prison”

[49]   The complainant considered that this was inaccurate because it was out of context with the three-year timeline of the investigation and the trial.

[50]   The Authority considers that the reporter’s statement was accurate. The item focused on the events which occurred between 2005 and 2008, including the trial, and clearly stated that the man had spent “312 days in prison” during that period. Further, the man himself referred to “the deposition, three-week trial, court of appeals twice, and Supreme Court”. It was not necessary in the interests of accuracy to outline how long each stage of the investigation and trial lasted. The Authority declines to uphold the complaint that this aspect of the item was inaccurate.

Name Suppression

[51]   Due to the nature of the complaint and the allegations made by FD, the Authority considers that it is appropriate to suppress the complainant’s name in this decision.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
20 October 2009

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.            FD’s formal complaint – 7 July 2009

2.           Letter from FD to TVWorks – 25 July 2009

3.           TVWorks’ response to the complaint – 28 August 2009

4.           Letter from FD to the Authority – 1 September 2009

5.           FD’s referral to the Authority – 6 September 2009

6.           TVWorks’ response to the Authority – 9 September 2009

7.           FD’s final comment – 15 September 2009

8.           TVWorks’ final comment – 17 September 2009

9.           Further information from ACC – 22 September 2009

10.         Further information from TVWorks – 24 September 2009

¹Decision No. 2009-053