Francis and Television New Zealand Ltd - 2007-041
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Ross Francis
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – interviewed alleged rape victim in high-profile police trials – discussed whether current system in New Zealand was fair to alleged rape victims – allegedly unbalanced
Standard 4 (balance) – item omitted crucial information about evidence in police trials which was highly relevant to the controversial issue under discussion – majority uphold
This headnote does not form part of the decision.
 An item on Sunday entitled “Justice Denied” was broadcast on TV One at 7.30pm on 11 March 2007. The item looked at the issues raised by the acquittal of three former Rotorua police officers (Brad Shipton, Bob Schollum and Assistant Police Commissioner Clint Rickards) in respect of a historical rape allegation. The reporter noted that the three men had also been acquitted in the high profile rape trial involving Louise Nicholas. Mr Rickards was shown outside the court after his acquittal stating that his accusers had “been proven, over the last three years, to be the liars that they are”. The reporter noted that Mr Shipton and Mr Schollum had previously been found guilty of the pack rape of a woman in Mount Maunganui, and had been sentenced to eight years in jail.
 The rape complainant, who was not identified in the item, said that the trial made her feel as though she was “a liar”, and feel that she was on trial rather than the accused. The reporter interviewed a close friend of the complainant, who stated that she believed it would have made a difference if the jury had been told that Mr Shipton and Mr Schollum were already in jail for rape. She also explained that the complainant had told her of the alleged rape within a week of it occurring. The reporter said because this was not deemed to be the “first reasonable opportunity” that the complainant had to tell somebody, her friend was not allowed to give evidence at the trial.
 In the second part of the item, the reporter noted that the not guilty verdict had sparked national outrage from women demanding changes to the way rape and sex crime cases were tried. Dr Kim McGregor, Director of Rape Prevention Education, stated that approximately 10 out of 100 rapes in New Zealand were reported to police, three out of 10 ended up in court, and one out of those three achieved a conviction. She noted that in the United Kingdom, 5.6 percent of reported rapes achieved conviction. Asked about the statistics in New Zealand, Dr McGregor replied “it sounds very comparable to the UK, from what we know”.
 The programme discussed the process of a rape complainant giving evidence at trial, with Dr McGregor noting that Louise Nicholas had been cross examined by three defence lawyers, in a hostile environment, for two days. She stated that the current system was “cruel, it’s barbaric, and it’s inhumane”, adding that it was unfair that those accused of rape did not have to testify.
 The reporter also interviewed Paul Davison QC, who stated that the current system was fair and noted that there was a low rate of convictions for rape because juries would look very carefully at the evidence. He stated that the adversarial system worked as well for rape complainants as it did for any other complainant in a criminal case.
 Ross Francis made a formal complaint about the programme to Television New Zealand Ltd, the broadcaster, alleging that it was unbalanced and inaccurate. He noted that the item had not explained what expertise, if any, Dr McGregor possessed on the topic of whether juries in rape trials were being denied relevant information about the accused. Mr Francis contended that Mr Davison’s interview had been brief and he had been prevented from discussing the relevant issues in any detail.
 The complainant noted that the close friend of the rape complainant had been allowed to speak but the programme had not given anybody the opportunity to rebut her allegations. The veracity of her claims had not been tested, he said, and viewers were “presumably expected to accept them as fact, even though a court ruled them inadmissible”.
 In Mr Francis’ view, the programme should have informed viewers that it was “imperative that any conviction for rape is safe” and pointed out that a person who was charged with making a false allegation of rape was unlikely to be imprisoned, whereas a person convicted of rape could spend a number of years in prison. The complainant also maintained that the reporter should have explained that the reason for not admitting the previous convictions of Brad Shipton and Bob Schollum was because this could have prejudiced Clint Rickards’ trial.
 With respect to Standard 5 (accuracy) and guideline 5b, the complainant maintained that Dr McGregor’s statistics relating to rape convictions in New Zealand and the United Kingdom were inaccurate. He said that if Dr McGregor wanted to argue that the rate of rape convictions was only 1 percent, or comparable to the UK, she should have provided evidence to prove that this was the case. Her claim would have caused unnecessary alarm to some viewers, Mr Francis wrote.
 In the complainant’s view, Dr McGregor was not a reliable source of information, and he questioned why TVNZ had chosen to interview her on the issue of rape when “more trustworthy sources” were available. He contended that TVNZ had breached guideline 5e by failing to ensure its information sources were reliable.
 TVNZ assessed the complaint with reference to the following standards and guidelines from the Free-to-Air Television Code of Broadcasting Practice:
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.
4a Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.
4b 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.
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.
5a Significant errors of fact should be corrected at the earliest opportunity.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
5c Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.
5d Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.
5e Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.
Broadcaster's Response to the Complainant
 Quoting from Mr Francis’ letter, TVNZ addressed individual points raised in the complaint.
“…The show’s presenter did not explain what expertise, if any, [Dr McGregor] possessed on the topic under discussion”
 TVNZ noted that Dr McGregor had been identified in the item as the director of Rape Prevention Education, and stated that Dr McGregor was used regularly by all media when they sought an expert opinion in the area of rape and sexual abuse. Dr McGregor had been awarded a doctorate for her study of trauma therapy and counselling, it added.
“[Dr McGregor] argued that the justice system did not meet the needs of rape victims. She implied that the courts should require a lower standard of proof for rape cases than other criminal cases.”
 TVNZ contended that Dr McGregor had clearly presented her remarks about the justice system as her opinion, noting that the New Zealand Bill of Rights Act 1990 gave everyone the right to freedom of expression. The public right to know was served by hearing Dr McGregor’s opinions about the experiences of rape victims at trial, and her view that the system was unfair.
 The broadcaster also noted that Paul Davison QC gave an alternative opinion in the programme. Although he may not have had the same time on air, it said, balance was not achieved by the stopwatch. It wrote:…balance is achieved through the substance of the opinion, rather than the time it took to say it.
“The veracity of [the rape complainant’s friend’s] claims was not tested. Viewers were presumably expected to accept them as fact, even though a court ruled them inadmissible.”
 TVNZ wrote that viewers were expected to accept the woman’s comments as her opinion, and the item had made it clear that her evidence had been ruled inadmissible for technical reasons. Viewers had not been misled, it said.
“Clearly your programme focused on the interests of the victim. It would have been useful, and might have satisfied the requirement for balance, had you devoted a similar amount of attention to the interests of the accused.”
 The broadcaster agreed that the item had focused on the interests of the victim. Quite transparently, it said, the story featured the experience of an anonymous victim who had her story told by her friend.
 In TVNZ’s view, there was nothing wrong with a current affairs programme picking up one aspect of a current situation which involved a number of issues. It noted that balance could be achieved “within the period of current interest”, writing:
With respect, the recent trials have resulted in extensive coverage of various aspects of these events and viewers did not go into this item on Sunday ignorant of the range of opinions in circulation. Beyond TVNZ there was similar extensive coverage on other television channels, on radio and in the daily and weekly newspapers.
 Having accepted that the item focused on the interests of victims, TVNZ noted that the wider implications had been explored through the opinion and comments of Dr McGregor and Paul Davison QC.
 Turning to Mr Francis’ argument over the statistics presented by Dr McGregor, TVNZ stated that it had access to the information on which she had based her comments and opinions. These documents included Professor Liz Kelly’s A Gap or a Chasm – Attrition in Reported Rape Cases (UK) and a report from the United States Senate Judiciary Committee saying that only 2 percent of rapists were convicted and imprisoned.
 TVNZ presented information from a variety of sources which, it said, supported Dr McGregor’s claim that the situation in New Zealand was comparable to that in the United Kingdom.
 Turning to the standards, the broadcaster found no lack of balance in the item and concluded that Standard 4 was not breached. The specific viewpoints offered were relevant to the specific focus of the item, it said, and the item itself formed part of a wider series of issues arising from recent trials involving historical allegations of rape. It noted that these issues had been covered in many other TVNZ items, by other broadcasters, and in many printed publications.
 In TVNZ’s view, the main area requiring balance in the item was between Dr McGregor and Mr Davison, and it contended that this was achieved. It reiterated that it was the quality of the opinions offered as opposed to the time they were on air that was important.
 Looking at Standard 5 (accuracy), the broadcaster recognised that reconciling statistics provided by Mr Francis with those provided by Dr McGregor was not going to be possible. However, it argued that Dr McGregor’s figures seemed soundly sourced. As a PhD, it said, Dr McGregor was accustomed to interpreting material from a wide variety of specialist sources, and TVNZ could see no reason to disbelieve the evidence upon which she based her opinions.
 The broadcaster concluded that Standard 5 was not breached.
Referral to the Authority
 Dissatisfied with the broadcaster’s decision, Mr Francis referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.
 The complainant reiterated his view that Dr McGregor was not a reliable source (guideline 5b), noting that she had not published any articles about rape in any reputable scientific journals. He contended that viewers would have believed her statements were factually correct, as her remarks had gone well beyond expressing her opinion.
 Mr Francis said that TVNZ should have obtained statistical information about rape convictions and prosecutions from the Ministry of Justice, and reiterated his view that the statements made by Dr McGregor about the number of rape convictions achieved in New Zealand were inaccurate.
 In Mr Francis’ view, the programme had promoted the view that insufficient numbers of rapists were being convicted because the New Zealand justice system was flawed. He noted the promotion for the Sunday programme on TVNZ’s website included the statement that New Zealand had “one of the lowest rates of conviction for sex crimes in the world” and asked “what’s wrong with our justice system?”
 The complainant noted that only one out of five individuals who spoke on the programme, Mr Davison, spoke in support of “the other side” of the debate. He stated that Mr Davison could have made many other points had he been allocated more time on the programme, including why the previous convictions of Brad Shipton and Bob Schollum had not been admissible. Mr Francis contended that TVNZ should have provided details of any programmes which covered these issues.
 The complainant maintained that Sunday should have interviewed the three accused who had featured in the item or, if they refused to be interviewed, it could have sought the views of an individual falsely accused of rape.
 Noting that the Authority seldom upheld balance complaints about programmes telling an individual story, Mr Francis contended that this item dealt with the issue of rape in general. He believed that TVNZ had failed to present significant sides of the debate in as fair a way as possible, particularly omitting the reason why the previous convictions were inadmissible in the trial discussed.
 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)
 Standard 4 requires that balance be provided when controversial issues of public importance are discussed. The Authority is in no doubt that the Sunday item "Justice Denied" discussed a controversial issue of public importance.
 The Authority agrees to an extent with TVNZ that the item focused largely on the interests of victims, and in particular on the experience of one alleged victim. However, it considers that the programme also examined the wider issue of whether the current adversarial system of trying rape and sex crime cases was fair to the alleged victims, and whether evidence of similar criminal convictions should be put before juries in rape trials – as signalled in the programme's introduction. Accordingly, the Authority finds that the requirement for balance in Standard 4 applied to the broadcast.
 Mr Francis contended that viewers should have been told that Bob Schollum and Brad Shipton’s previous convictions were not admissible in the most recent rape trial because this would have prejudiced Clint Rickards’ trial. A majority of the Authority (Joanne Morris, Tapu Misa and Diane Musgrave) agrees that this was important information highly relevant to the controversial issue under discussion.
 The majority notes that the inadmissibility of the prior convictions of Mr Shipton and Mr Schollum was used in the item to illustrate the unfairness of the current system for victims. For this reason, the majority finds that the reason for not admitting their previous convictions was crucial information which viewers needed in order to assess whether the current system was “fair”.
 Accordingly, the majority considers that this information amounted to a significant perspective on the controversial issue under discussion which should have been presented to viewers. It finds that the failure to include this perspective breached the requirement for balance in Standard 4.
 A minority of the Authority (Paul France) considers that because the controversial issue under discussion was the wider issue of the justice system in relation to rape trials, this particular information was not relevant to viewer’s understanding of the wider issue. The minority considers that it was not necessary for the broadcaster to present this piece of information to viewers because the item’s discussion of that particular case was not crucial to its discussion of the wider controversial issue. Accordingly, the minority does not uphold this part of the complaint.
 Mr Francis also complained that the item was unbalanced because Paul Davison QC was the only interviewee to put forward the “other side of the story”. However, in the Authority’s view, Mr Davison adequately put forward the viewpoint that the adversarial system worked equally well in rape trials as it did for other criminal cases, and that there were no significant flaws in the justice system. He also expressed the view that low levels of convictions for rape reflected the fact that juries would carefully consider evidence before finding against someone accused of rape. The Authority considers that Mr Davison’s comments were sufficient to balance Dr McGregor’s viewpoint that the system was weighted against alleged rape victims. Accordingly, it finds that the balance standard was not breached in this respect.
 Therefore a majority of the Authority upholds one aspect of the balance complaint relating to the omission of significant information about the police trial which was highly relevant to the controversial issue under discussion.
Standard 5 (accuracy)
 Mr Francis’ accuracy complaint relates to two statements made by Dr McGregor which focus on statistics of rape complaints and prosecutions. Those statements were:
“Approximately 10 out of 100 rapes will be reported to the police. Approximately 3 out of those 10 will get to court. And approximately one out of these 3 will achieve a conviction.”
“In the United Kingdom we know that 5.6% of reported rapes achieve a conviction, so 94% don’t” and her conclusion that the statistics in New Zealand “sound very comparable to the UK, from what we know.”
 The Authority notes that the accuracy standard only applies to statements of fact, and it finds that Dr McGregor’s comments did not fall within this category. With respect to the first statement, the Authority observes that Dr McGregor made it clear to viewers that she was using approximate figures. Because she expressed that the figures were not absolute, and the Authority finds that she was not presenting a statement of fact to which Standard 5 applied.
 With respect to the second statement, the Authority notes that Dr McGregor explained that the Ministry of Women’s Affairs would be conducting research to determine what percentage of reported rapes achieved a conviction. Her comment that the New Zealand statistics sounded “very comparable to the UK, from what we know”, was not an unqualified statement of fact. The Authority considers that it was clear from her comments that the figures had not been confirmed, and that the research was underway. The Authority finds that Standard 5 did not apply to this statement.
 Mr Francis’ other concern was that TVNZ did not take all reasonable steps to ensure that Dr McGregor was a reliable source of information (guideline 5e). This was based on his arguments that her statements were inaccurate. However, the Authority finds that Dr McGregor was not presented as an expert source of information on rape statistics. Rather, she was presented as an advocate for rape victims, and the Authority considers that viewers would have considered her comments in that context. It does not uphold this part of the accuracy complaint.
Bill of Rights
 For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons a majority of the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Sunday breached Standard 4 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. Where a decision is not unanimous, it has been the practice of the Authority to decline to impose an order, unless the circumstances of the complaint are exceptional. No such circumstances exist in the present case, and therefore the Authority considers that an order is not required.
Signed for and on behalf of the Authority
14 August 2007
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Ross Francis’ formal complaint – 26 March 2007
2 TVNZ’s decision on the formal complaint – 17 April 2007
3 Mr Francis’ referral to the Authority – 9 May 2007
4 TVNZ’s response to the Authority – 5 June 2007