BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Gotlieb and Jackson and CanWest TVWorks Ltd - 2005-084

Members
  • Joanne Morris (Chair)
  • Diane Musgrave
  • Tapu Misa
  • Paul France
Dated
Complainants
  • Craig Jackson
  • Gary Gotlieb
Number
2005-084
Broadcaster
CanWest TVWorks Ltd
Channel/Station
TV3 # 2

Complaint under section 8(1)(a) of the Broadcasting Act 1989
60 Minutes – item about the murder of Deidre Tobin by her partner Craig Jackson – Mr Jackson found not guilty by reason of insanity – interviewed Ms Tobin’s family and friends plus two detectives who believed Mr Jackson was faking his insanity – allegedly in breach of law and order, unbalanced, inaccurate and unfair

Findings
Standard 2 (law and order) – nothing inconsistent with the maintenance of law and order – not upheld

Standard 4 (balance) – Authority unable to determine the position of the Crown solicitor – overall programme was balanced – not upheld

Standard 5 (accuracy) – no inaccuracies – not upheld

Standard 6 (fairness) – not unfair to Mr Jackson, Dr Simpson or the Tobin family – not upheld

This headnote does not form part of the decision.


Broadcast

[1] A 60 Minutes item entitled “Insanely Jealous?” was broadcast on TV3 at 7.30pm on 9 May 2005, and reported on the killing of Deidre Tobin by her partner Craig Jackson. The item stated that Mr Jackson had been found not guilty of murder by reason of insanity. Interviews with Ms Tobin’s family and friends, together with detectives involved in the case and extracts from the court hearing, formed part of the report. This included part of the evidence from Dr Sandy Simpson, a psychiatrist who had examined Mr Jackson and had concluded that he had suffered a six to eight week acute psychosis. Excerpts from the police video of the initial interview with Mr Jackson were also included.

[2] The item reported that Ms Tobin’s parents and friends doubted that Mr Jackson was insane at the time of the killing, and that two police officers involved in the case shared this view. It was noted that a psychiatrist named Dr Hinton had also suspected that Mr Jackson might have been “faking his insanity”, but that Dr Hinton had never formalised his suspicions in a report. Because Dr Hinton would only comment on the reports he had furnished, the item said, there was not enough evidence to convict Mr Jackson.

Complaint

[3] Gary Gotlieb, acting as Mr Jackson’s legal counsel and also on his own behalf, complained to CanWest TVWorks Ltd, the broadcaster, that the item breached Standards 2, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[4] Mr Gotlieb argued that the programme presented Mr Jackson as being a jealous and possessive man, who had killed his partner by shooting her four times in the head and then faked being insane in order to be acquitted of murder. The complainant noted that there was no attempt to explain a possible motivation for Mr Jackson to have done this, considering he was now indefinitely incarcerated in a mental health facility.

Standard 2 (law and order)

[5] Noting guideline 2a of Standard 2, Mr Gotlieb contended that the item challenged the correctness of a jury verdict, the due process of the court and the propriety of the Crown Prosecutor. He stated that his position was not that a judicial outcome should be free from fair comment and criticism. However, Mr Gotlieb argued that condensing a full police investigation and jury trial into a 12-minute item was inherently incapable of doing justice to the complex issues involved.

[6] In Mr Gotlieb’s view, the item suggested that the Crown improperly consented to the defence of insanity because, despite knowing that Mr Jackson was faking, they were unable to present that evidence through Dr Hinton. He noted statements in the programme that “without Dr Hinton present, there wasn’t enough evidence to convict” and “the Crown was without a case”. Rather, he said, the Crown was not without a case; the Crown case was that Mr Jackson was insane. Mr Gotlieb noted that the Crown could have called rebuttal evidence from Dr Hinton if they had wished to do so, but they did not.

[7] In any event, the complainant stated that the jury was aware of Dr Hinton’s opinion. The item had failed to mention that Dr Simpson, in presenting his evidence, mentioned explicitly Dr Hinton’s view that Mr Jackson might be fabricating his symptoms.

[8] The programme had put forward the view that ultimately “the jury had little choice but to agree” that Mr Jackson was insane. The implication was clear that if only they had all the evidence, such as Dr Hinton’s evidence, they may well have reached a different verdict. In Mr Gotlieb’s view, this was “farcical” and CanWest’s selective quotation of evidence had done nothing but bring the justice system into disrepute.

Standard 4 (balance)

[9] In alleging a lack of balance, Mr Gotlieb stated that the item had only presented the view that Mr Jackson had faked his insanity. He contended that CanWest had not attempted to obtain a balanced point of view by interviewing him or Dr Simpson, whose evidence had been put into question in the item.

[10] The complainant argued that CanWest had failed to present a multitude of other evidence in the programme. This included the fact that two other psychiatrists, as well as Dr Simpson, had assessed Mr Jackson and agreed that he was insane at the relevant time. Mr Gotlieb argued that the item had also failed to mention evidence presented at trial from witnesses (including the deceased’s son) as to Mr Jackson’s history of mental instability and his increasingly bizarre behaviour leading up to the tragedy.

[11] Mr Gotlieb noted that Detective Sabin had described his experience with Mr Jackson as “quite unusual”, but had then gone on to express doubts as to Mr Jackson’s insanity. This view, Mr Gotlieb argued, conflicted with the detective’s opinion which was placed before the court in an Opposition to Bail. The detective had noted that Mr Jackson was deluded and disturbed, and observed that a Duly Authorised Officer under the Mental Health (Compulsory Assessment and Treatment) Act 1992 had examined Mr Jackson and agreed he was deluded.

[12] The complainant also referred to Detective Sabin’s concern about one aspect of the police video, which showed what the item said was a “brief interruption” to Mr Jackson’s references to God and the devil:

Q:   So why did you shoot her four times?

A:   Because she got up…no, just to…not to hurt Deidre, what happens if I didn’t kill her,
     she would have poisoned the whole world…

[13] In Mr Gotlieb’s opinion, the viewer was supposed to think Mr Jackson’s initial answer was “correct” and the follow-up answer was somehow covering him by reverting back to his insane behaviour. If this was Detective Sabin’s view, he said, this was in stark contrast to what was accepted by police at trial, who agreed that it was not possible Ms Tobin had got up after being shot the first time.

[14] The complainant maintained that the opinions of the detectives as to Mr Jackson’s sanity were irrelevant, given that neither man was qualified to give such an opinion. It was also a slight to Dr Simpson and the other psychiatrists to present the detectives’ opinions without giving them an opportunity to also comment.

Standard 5 (accuracy)

[15] Mr Gotlieb stated that Dr Hinton was a “medical officer of special scale” which meant that he was a person working under supervision in that area, but not a specialist. He argued that Dr Hinton was therefore not a psychiatrist as depicted in the story.

[16] The complainant noted that Dr Hinton had been brought in to see Mr Jackson because the prison staff were concerned that he was mentally ill. This demonstrated that others were concerned about his mental health, and also that Dr Hinton’s role in relation to Mr Jackson was therapeutic, not forensic. Mr Gotlieb contended that for Dr Hinton to have then provided a forensic opinion would have been a conflict of interest. It may also have been one of the reasons why Dr Hinton had not been called to give evidence, he said.

[17] Mr Gotlieb noted the statement in the item that Dr Hinton had not been prepared to comment on the reports of other forensic psychiatrists. He opined that this was because Dr Hinton himself was not a psychiatrist, and was relatively inexperienced compared to Dr Simpson and the other psychiatrists who had assessed Mr Jackson. These reasons had not been investigated by CanWest nor mentioned in the item, the complainant noted.

[18] The item had also stated that Mr Jackson had shot Ms Tobin twice in the head, reloaded, and then shot twice more. Mr Gotlieb said that while this was technically “accurate”, the item had failed to mention that Mr Jackson believed Ms Tobin was rising up, and he thought this was the devil.

[19] The item was also inaccurate in stating that Mr Jackson had “claimed he was insane”, Mr Gotlieb contended. Mr Jackson had never made that claim, rather it had been the view of three psychiatrists, defence counsel, and the Crown.

[20] Mr Gotlieb also expressed concern about the statement in the item that, from viewing the police interview, “it quickly became apparent that [Mr Jackson] would be pleading insanity”. This implied that Mr Jackson had devised this plot in order to be acquitted and had behaved accordingly, the complainant said, which was inaccurate. He noted that Mr Jackson had never instructed him to run the defence of insanity, and this had only ever been determined after a number of psychiatric reports had been obtained. Further, Mr Gotlieb noted that he had to visit Mr Jackson several times in the initial stages to explain the defence of insanity, as he was unable to comprehend what was going on.

Standard 6 (fairness)

[21] Mr Gotlieb contended that the item was unfair to Mr Jackson, Dr Simpson and the Tobin family. With respect to the Tobins, the complainant noted that CanWest had been keen to know their opinions as to Mr Jackson’s sanity, even though they were not qualified to give such opinions. Mr Gotlieb argued that they were a grieving family, adding:

For TV3 to take advantage of their vulnerability by attempting to stir up a sense of injustice with purported “evidence” only adds to their grief and is unconscionable. There were no attempts by TV3 to assist the Tobin family by providing some insight and understanding into Mr Jackson’s behaviour.

[22] Mr Gotlieb stated that the item implied that since Mr Jackson had been faking, Dr Simpson and two other psychiatrists had been simply taken in by the performance. The idea that these professionals were unable to discern between genuine mental illness and “faking” was a direct challenge to the integrity of the process as a whole, and should not have been put forward without good grounds. This implication had been unfair to Dr Simpson, the complainant said.

[23] Further, Mr Gotlieb referred to the following comments in the item which had, in his view, given an unfair impression of Mr Jackson:

  • References to him as a “man once filled with murderous rage” were inflammatory and misleading. Since Mr Jackson was legally insane, it was doubtful whether “murderous rage” was the correct term.
  • Statements that “on the night, [Deidre] packed his bags and told him to go” implied the real motive for the killing. Mr Gotlieb was not aware of any evidence to support that statement; it was nothing which had resulted from the police investigation that was disclosed to counsel.
  • The statement that Mr Jackson and Ms Tobin “argued frequently”, that he was possessive, and comments from her friends that in the weeks leading up to the killing Ms Tobin had difficulty handling him. The item did not mention that Ms Tobin’s increasing frustrations were her observations of his increasingly bizarre and unstable behaviour. It was clear from evidence in court that Mr Jackson was suffering from a psychotic episode for some 6-8 weeks prior to the killing.
  • Comments purportedly from Mr Jackson’s ex-wife, “who would not appear due to fears for her safety”. This was unfounded, undetailed, and unverifiable.
  • The comment that his ex-wife also “doubts his insanity”. She was not qualified to give her opinion, she was not there, and was not involved in the case in any way. Moreover, Mr Jackson’s family could attest to a long history of his unstable behaviour, even while he was married to his ex-wife.

[24] In conclusion, Mr Gotlieb stated that the 60 Minutes item was inaccurate and misleading, had brought the justice system into disrepute, and had been one-sided and unfair. He noted that Justice Nicholson had allowed CanWest to broadcast excerpts from the police interview under the impression that the story would assist the public in understanding how a person who had shot someone could nevertheless be acquitted on the ground of insanity. This had not been the intent or effect of the item, Mr Gotlieb said.

Standards

[25] CanWest assessed the complaint under Standards 2, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. They provide:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

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.

Standard 6 Fairness

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

Broadcaster's Response to the Complainant

Standard 2 (law and order)

[26] CanWest stated that many of the points made by Mr Gotlieb under Standard 2 were more appropriately dealt with under the requirements of Standards 4 and 6. The broadcaster contended that the tone of the item was not disrespectful of the system of justice, and stated that understanding a decision of this nature was a matter of public interest.

[27] The broadcaster found that the “legitimate discussion” about the case was not inconsistent with the maintenance of law and order. Further, it disagreed with the complainant that the programme had questioned the way in which the verdict was reached. CanWest provided the following quote from the producer of the programme:

We didn’t suggest that the Crown improperly consented to a defence of insanity; we explained that in the circumstances of this case there was, in the Crown’s opinion, insufficient evidence with only Dr Hinton to call on, and his stated position on the type of evidence he was prepared to give. There would be little chance of overcoming reasonable doubt.

[28] CanWest further noted Mr Gotlieb’s statement that no judicial outcome could be immune from fair comment and criticism. It contended that the 60 Minutes item fell squarely into those categories. The broadcaster found that there had been no breach of Standard 2.

Standard 4 (balance)

[29] CanWest accepted that the item dealt with a controversial issue of public importance – the process by which the verdict of not guilty due to insanity was reached. It included a response from the programme’s producer to the issues Mr Gotlieb had raised.

[30] The producer stated that it was not possible to show all the evidence presented in the context of a current affairs programme. Responding to the complainant’s claim that they had selectively presented only one side of the argument, the producer contended that the converse was true. The item had included part of Mr Gotlieb’s address to the court, comments from the judge, extracts from Dr Simpson’s testimony, and a statement from Mr Jackson’s father. This material had all referred to Mr Jackson’s mental condition and had been used to provide balance to the story.

[31] The producer also noted that Dr Simpson had been asked to contribute to the programme, but he had not responded to the request. Mr Jackson’s father had declined to do a sit-down interview, the producer said, so the item had included almost the entire statement given by him after the court case.

[32] The producer referred to Mr Gotlieb’s statement that the programme had not included statements from multiple witnesses that described Mr Jackson as being disturbed and deluded before and after the offence, including the victim’s son. In fact, the producer said, Ms Tobin’s son had not given evidence at trial and Mr Jackson had no previously documented psychiatric history. The Jackson family and friends had been given every opportunity to provide those observations. Furthermore, the producer had contacted a man who was described as being one of Mr Jackson’s best friends, but he had declined to be interviewed.

[33] The producer said that they had also limited the number of people in the story who questioned whether Mr Jackson was mentally ill. There had been several more friends, family and neighbours whose views were similar to those aired in the programme, she said.

[34] With respect to Detective Sabin, the producer advised that he had never believed Mr Jackson to be insane. In his Opposition to Bail Detective Sabin had stated that Mr Jackson was exhibiting delusional behaviour and expressed the Duly Authorised Officer’s thoughts, not his own beliefs.

[35] As for the complainant’s concerns about the “illustration” showing the interruption to Mr Jackson’s God and devil references, the producer stated that the programme did not imply that Ms Tobin actually did get up. Rather, it demonstrated what had appeared to the detective to be an example of Mr Jackson changing his mind, considering what would be the best response and then opting for a look of insanity.

[36] The producer noted Mr Gotlieb’s complaint that the item had not included evidence from other psychiatrists who had seen the defendant. In fact, she said, the programme had specifically stated that other psychiatrists had disagreed with Dr Hinton’s observations.

[37] CanWest considered that all those who held significant points of view on the process by which the verdict was reached had a reasonably opportunity to “have their say” on the issue. It considered that reasonable efforts were made to obtain and present Dr Simpson’s view, in light of the fact that he had declined to participate.

[38] Further, the broadcaster found that Mr Gotlieb’s view as defence counsel was adequately encapsulated in the part of his address which was seen by the viewer. It stated that CanWest was always conscious that it was legally difficult for counsel to comment on material that might be subject to legal privilege. The broadcaster found no breach of Standard 4.

Standard 5 (accuracy)

[39] CanWest summarised the complainant’s concerns about accuracy as being:

  • the description of Dr Hinton as a psychiatrist when in fact he was a “medical officer of a special scale”, and that his role was therapeutic not forensic
  • the presentation of the four shots
  • the statement that Mr Jackson claimed he was insane, when in fact the decision to pursue that defence was made by experts.

[40] The broadcaster noted that Dr Hinton had seen Mr Jackson three times, well before any other psychiatrist, and had made an assessment based on those attendances. CanWest also understood that he was a member of the Royal College of Psychiatrists in the United Kingdom. Under these circumstances, the broadcaster found that the description of Dr Hinton and his work was not inaccurate.

[41] With respect to the number of shots fired by Mr Jackson, CanWest noted that the item showed him explaining why he had fired four shots. Further, Mr Gotlieb had been shown explaining why four shots were unnecessary to kill Ms Tobin. The broadcaster found no inaccuracy in this regard.

[42] CanWest also maintained that the programme had not said that Mr Jackson “claimed he was insane”. It pointed to the following statements in the item:

  • You kill someone, shoot them at point blank range, then admit everything. Will you be found guilty of murder? Well no, not if you’re mad at the time, not if you plead insanity. Craig Jackson did just that. He shot his partner Deidre, and confessed in a videotaped police interview, which we’ve been fighting to broadcast.
  • …Jackson fully admitted shooting Deidre Tobin – the defence didn’t try to claim otherwise. What it did claim was that Jackson was insane at the time, and couldn’t have understood the moral consequences of what he’d done.

[43] In CanWest’s view, the programme accurately recounted that Mr Jackson’s defence was one of insanity, and it found no breach of Standard 5.

Standard 6 (fairness)

[44] CanWest concluded that the item was not unfair to Dr Simpson. It said that Dr Simpson was aware that the video of Mr Jackson’s police interview could be screened. The broadcaster noted that Dr Simpson’s evidence, shown in the programme, clearly outlined the forensic findings he had made. Further, reasonable attempts had been made to obtain additional comment from him. When this opportunity had not been taken up, CanWest said, a clear summary of Dr Simpson’s views had been included along with the fact that the court accepted his conclusions.

[45] Similarly, the broadcaster did not agree that Mr Jackson was treated unfairly in the item. It stated that all of the comments made in the programme had been investigated and found to be accurate in the course of the research done. CanWest observed that if seeing the programme was likely to be upsetting for Mr Jackson, surely his caregivers would have carefully assessed whether he should watch it.

[46] CanWest was also of the view that the item was not unfair to the Tobin family. The family had told CanWest that they found the opportunity to talk to the media about the events had “lifted a lot of burden” from them because it had provided any opportunity for them to have their say.

Referral to the Authority

[47] Finding CanWest’s response to be unsatisfactory, Mr Gotlieb referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He stated that CanWest had “glossed over” the complaint, and did not appreciate that concepts such as balance and fairness were not met by casual references to another side of the story. Mr Gotlieb contended that balance and fairness involved taking those competing views seriously, not merely mentioning that another view exists “while continuing with the particular spin of the story”.

Further Information Requested by the Authority

[48] The Authority sought further information from both the complainants and CanWest in order to assist its determination of this complaint.

Information from the complainants

[49] The Authority asked Mr Gotlieb to provide the following information on behalf of himself and Mr Jackson:

  • What exact role did Dr Hinton play in the assessment of Craig Jackson?
  • Was Dr Hinton asked to give evidence? By whom? What was his response?
  • Did the Crown present expert psychiatric evidence during the trial? If so, from who, and what was this evidence?
  • What, if anything, did the Crown prosecutor say in court about the importance and weight of Dr Hinton’s assessment of Mr Jackson?
  • Did any of the psychiatrists comment on Dr Hinton’s assessment of Mr Jackson, or on the view Dr Hinton expressed that Mr Jackson’s symptoms might be factitious?
  • During the trial, what, if any, evidence was presented, other than from psychiatrists, about Mr Jackson’s mental state:
    • in the long term past?
    • in the period before the death of Ms Tobin?
    • after the killing?

[50] In response to question 1, Mr Gotlieb responded that Dr Hinton had performed an initial clinical assessment of Mr Jackson upon his arrival in prison. Dr Hinton provided Mr Jackson with clinical care, and was “not there in a forensic medico-legal capacity”.

[51] Mr Gotlieb stated that Dr Hinton had returned to the United Kingdom prior to the trial, and he did not believe that Dr Hinton had ever formally been asked to give evidence (since his role was clinical and not forensic). Mr Gotlieb said that it would be most unusual to call a treating doctor rather than a forensic doctor to give evidence. Further, Dr Hinton’s information was gathered for clinical purposes and was a protected communication in terms of the Evidence Act.

[52] With respect to question 3, Mr Gotlieb advised that the Crown did not present expert psychiatric evidence at the trial. This was because, in his understanding, the Crown had obtained another expert forensic opinion which concurred with that of Dr Simpson and the other two psychiatrists.

[53] Mr Gotlieb did not recall the Crown Prosecutor saying anything at the trial about Dr Hinton’s assessment of Mr Jackson. He considered that this was not surprising, given that Dr Hinton was not a forensic doctor, and was not asked for an expert opinion. It was for this reason, he said, that CanWest’s focus on Dr Hinton’s view was so incongruous.

[54] As to question 5, Mr Gotlieb stated that both Dr Simpson and another psychiatrist commented about Dr Hinton’s view in their written reports. Dr Simpson’s oral evidence had also mentioned explicitly Dr Hinton’s view that Mr Jackson might be fabricating, so this information was before the jury.

[55] Lastly, with regard to Mr Jackson’s mental state, Mr Gotlieb noted that Ms Tobin’s son gave evidence at depositions that Mr Jackson had been behaving strangely in the previous two weeks. The son had also given evidence about Mr Jackson’s behaviour on the day in question, which clearly showed behaviour that was irrational and mentally disturbed, Mr Gotlieb wrote. As to his past history, Mr Jackson’s family had confirmed that he suffered from mental health issues in the past, but no evidence was needed at the trial because the evidence was not in dispute.

Information from CanWest

[56] The Authority asked CanWest to provide the following information:

  • The item stated that “at least one” psychiatrist had “serious doubts” about the insanity verdict. What psychiatrists, other than Dr Hinton, expressed the view that Mr Jackson was manufacturing his symptoms?
  • What was 60 Minutes’ understanding of the Crown’s position regarding the appropriateness of the insanity defence, and upon what information was this understanding based?
  • Did 60 Minutes approach the Crown prosecutor for comment?
  • If so then what, if anything, did the Crown prosecutor say about the importance and weight of Dr Hinton’s evidence?
  • What evidence is there of Deidre Tobin telling Mr Jackson to leave home on the night of her death, as stated in the item?
  • What was the relevance of the statement from Mr Jackson’s ex-wife?

[57] In replying to the Authority, CanWest sought input from the reporter/producer of the programme. In response to question 1, it stated that Dr Hinton was the only psychiatrist spoken to by 60 Minutes. The programme did not suggest that there were numerous psychiatrists who shared his viewpoint, it said, and there may well have been others.

[58] As to the Crown’s position, CanWest responded that the Crown had no direct evidence with which to challenge the insanity defence without Dr Hinton’s testimony. Just because the Crown did not contest the insanity defence it did not necessarily mean that it accepted Mr Jackson was insane, CanWest contended. It only meant that the Crown lacked the necessary evidence to challenge the claim that he was. The producer of the programme had been told that the absence of Dr Hinton’s testimony had left the prosecution “between a rock and a hard place”.

[59] CanWest maintained that it did not need comment on camera from the Crown prosecutor. It noted that parts of his statements to the court were used in the item. However, the Crown prosecutor had been spoken to off camera and was fully aware that CanWest was doing the story. He had no problem with the broadcaster’s intention to use the police videotaped interview with Mr Jackson, it said, and had in fact made the relevant applications to the court.

[60] In response to question 5, CanWest wrote that neighbours had seen major domestic arguments the afternoon before Ms Tobin was killed. One of Ms Tobin’s friends and her son had been told that she had asked Mr Jackson to leave the day before she was killed and had packed his bags. When the police arrived, CanWest said, they found Mr Jackson’s bags packed and ready to go outside the house.

[61] As for Mr Jackson’s ex-wife, the broadcaster considered her statement was relevant because it showed that other people also doubted whether Mr Jackson was indeed insane. She had told the producer that she did not wish to appear on camera because she feared for her safety. CanWest submitted that her statements showed that Mr Jackson’s behaviour was nothing new.

[62] CanWest also made further comments about the information provided by Mr Gotlieb. It stated that the Authority should be slow to accept what Dr Simpson or Mr Gotlieb said about Dr Hinton’s role in Mr Jackson’s treatment. It suggested that the Authority should seek such information directly from Dr Hinton. In addition, CanWest noted that protected communications under section 35A of the Evidence Act could be compelled where fair trial interests are at stake. The interpretation of that section was complex, it said.

[63] Referring to Mr Gotlieb’s statement that the Crown had obtained another expert forensic opinion which concurred with that of Dr Simpson, CanWest contended that Mr Gotlieb should not speculate about the Crown’s motive or information. The Authority should seek that information directly from the Crown, it argued.

[64] The broadcaster commented that there was obviously considerably more material available to the Crown and before the court than was put into the programme. It was always necessary to omit material when reporting on a court case, CanWest said. This did not inevitably lead to an inaccuracy or unfairness.

Information from the Crown Solicitor

[65] The Authority asked the Crown solicitor who prosecuted Mr Jackson’s trial to provide the following information:

  1. Could he confirm that the Crown did not actively oppose the insanity plea?
  2. If the Crown did not oppose the insanity plea, then why not?
  3. Did the Crown actively support the insanity plea?
  4. Was any evidence available to the Crown that would reasonably have allowed it to oppose the plea?
  5. Did the Crown consider calling Dr Hinton, the UK psychiatrist, as a prosecution witness?
  6. If called, what evidence was Dr Hinton likely to have given?
  7. Why was Dr Hinton ultimately not called as a witness at trial?

[66] The Crown solicitor replied that the Crown evidence consisted of a statement from the officer in charge relating to the evidence gathered and the playing of the Mr Jackson’s video interview. The accused called one witness, an expert who testified to matters raised by s.23 of the Crimes Act 1961 relating to Mr Jackson’s sanity. The Crown did not attack that witness’ credibility or call any rebuttal evidence.

[67] The Crown solicitor wrote that despite considerable inquiry, including of Dr Hinton, there was no rebuttal evidence available to the Crown to challenge or rebut the defence raised. He pointed out that the onus of establishing a defence on the grounds of insanity was on the accused, adding:

The Crown could no more consent to that finding by the jury than it could attack it without any evidence.

[68] Noting that the information provided still did not give a clear picture of the Crown’s position, the Authority asked the Crown solicitor to confirm whether:

  1. The Crown would have liked to call Dr Hinton to give evidence as he would have provided evidence of Mr Jackson’s sanity, which may have refuted the insanity defence
  2. It was because Dr Hinton was living in the UK, and unavailable to be called at trial, that he did not give evidence.

[69] In reply, the Crown solicitor stated his reluctance to discuss procedures in relation to the conduct of prosecutions. He made the following comments:

  1. The defence of insanity is a matter to be established by the accused.
  2. It is usual that the Crown is given prior notice that the defence will be advanced at trial. That was the position in the Jackson trial.
  3. The Crown will invariably investigate whether there is evidence capable of rebutting the defence. In this case the evidence that the accused was insane was to be advanced on the facts of the offending and supported by medical evidence from a competent psychiatrist.
  4. The psychiatric reports available to the accused were supplied to the Crown.
  5. The Crown took the view that effective rebuttal would require evidence from a psychiatrist in a position to challenge the findings of that psychiatrist.
  6. The Crown then made careful inquiry and in particular had Dr Hinton, then resident in the United Kingdom, review the psychiatric reports.
  7. The Crown was advised by Dr Hinton that he was not prepared to rebut the psychiatric reports.
  8. In those circumstances the Crown formed the view that no challenge could properly be advanced to the insanity plea being raised. The fact that Dr Hinton was resident in the United Kingdom was not determinative of that decision.

[70] Finally, the Crown solicitor wrote that he thought “it should be made clear that my office has not raised any complaint about this programme”.

Response from CanWest

[71] After receiving the information from the Crown solicitor, CanWest added that the 60 Minutes producer had spoken to the head of the CIB in Whangarei, who said that the police had wanted to call Dr Hinton but he had asked for a large fee for appearing at trial. The Crown, they were told, was not prepared to pay that fee.

[72] CanWest submitted that nothing in the Crown solicitor’s letter had contradicted the statements in the programme. It also said that the Authority should take note of the final statement in the Crown solicitor’s letter, which confirmed that his office had not raised any complaint about the programme.

Authority's Determination

[73] 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 2 (law and order)

[74] The intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. As there is no suggestion that this occurred in the present case, the Authority does not uphold the law and order complaint.

Standard 4 (balance)

[75] The first issue for the Authority when determining a complaint about balance is whether the programme discussed a controversial issue of public importance. On this occasion, the programme examined whether Craig Jackson had escaped a murder conviction for killing his partner by faking insanity. The Authority considers this to be an issue to which Standard 4 applies.

[76] The balance standard requires that programmes discussing controversial issues must make reasonable efforts to present “significant points of view”. The complainants’ main concern about balance was that the programme did not adequately present the view that Mr Jackson was not faking his insanity. In the Authority’s view, CanWest made reasonable efforts to obtain comments from people who could have presented this viewpoint.

[77] The broadcaster approached Dr Sandy Simpson for his comment but he did not respond to its requests. CanWest also asked Craig Jackson’s father and one of his best friends to participate in an interview but they declined. Instead, the broadcaster included part of Dr Simpson’s testimony from the trial in the item, along with part of Mr Gotlieb’s address to the court.

[78] In light of the above efforts, the Authority was concerned that the only significant perspective omitted from the programme was a clear explanation of the Crown solicitor’s position on the insanity defence. In the Authority’s view, the programme presented the opinion of police detectives as if that were the Crown’s position, when in fact decisions about the weight of evidence and the conduct of a case such as this are made by the Crown solicitor.

[79] The Authority endeavoured by repeated efforts to clarify the Crown’s position, but correspondence from the Crown solicitor has left some ambiguity. As a result, the Authority has been unable to determine whether the programme reflected the views of the Crown solicitor with respect to the insanity plea.

[80] Having found that the programme was balanced in all other respects, the Authority declines to uphold the Standard 4 complaint.

Standard 5 (accuracy)

[81] The complainants have identified four alleged factual inaccuracies in the programme, all of which have been outlined in the summary of correspondence. The Authority has considered each allegation in turn.

The description of Dr Hinton as a psychiatrist, when he was a “medical officer of special scale”

[82] According to Mr Gotlieb, Dr Hinton was working as a “medical officer of special scale”, which meant he was working under supervision and was not a psychiatrist as depicted in the item. As the Authority understands it, specialists visiting New Zealand are often temporarily registered as medical officers of special scale so that they can work in this country.

[83] The Authority accepts that Dr Hinton is a registered psychiatrist in the United Kingdom. While he was not actually registered as such in New Zealand, the Authority finds that it was not inaccurate to describe him as a psychiatrist in the programme. It does not uphold this part of the accuracy complaint.

The item failed to report why Mr Jackson had shot Ms Tobin four times

[84] The complainants referred to the statement in the item that Mr Jackson “shot [Ms Tobin] twice in the head at point-blank range, then reloaded the shotgun and shot her twice more”. They argued that while this was technically accurate, it failed to mention that Mr Jackson believed Ms Tobin was rising up, and he thought this was the devil.

[85] In the Authority’s view, Mr Jackson’s reasons for shooting Ms Tobin were adequately explained in the item. Detective Sabin reported that Mr Jackson had “claimed repeatedly that he had to kill the devil and that the devil was inside Deidre”. Mr Jackson was seen on the police video saying:

“It wasn’t Deidre. It’s the devil we’re talking about here bro…she would have wiped out the whole earth”

“She fell to the ground, she had a little fit, and then she looked up at me again, with those eyes”

[86] The item also included an extract from Mr Gotlieb’s address to the court, where he stated that Ms Tobin had died after the first shot, and did not get up or look at Mr Jackson. He clearly explained that Mr Jackson had kept firing at what he believed was the devil.

[87] Taking into account the amount of information included in the item which explained why Mr Jackson had shot Ms Tobin several times, the Authority finds that the statement was not inaccurate.

Statement in the item that Mr Jackson “claimed he was insane”

[88] The complainants argued that the programme stated that Mr Jackson “claimed he was insane”, and that this was inaccurate because Mr Jackson had never done so. CanWest disputed this, noting that the programme actually said:

Because Jackson fully admitted shooting Deidre Tobin – the defence didn’t try to claim otherwise. What it did claim was that Jackson was insane at the time, and couldn’t have understood the moral consequences of what he’d done.

[89] Having viewed the programme and examined a transcript, the Authority agrees with CanWest that it did not state that Mr Jackson had “claimed he was insane”. Accordingly, the Authority does not uphold this part of the complaint.

Statement that “it quickly became apparent that [Mr Jackson] would be pleading insanity”

[90] The complainants maintained that this statement implied that Mr Jackson had devised a plot in order to be acquitted, and had behaved accordingly. The Authority does not agree that the statement had that implication.

[91] The Authority observes that the comment was made directly before extracts from the police video were shown. The Authority finds that the statement did not imply that Mr Jackson had devised a plot to plead insanity, but that his behaviour in the police video was not that of a sane person. It finds that Standard 5 was not breached in relation to this matter.

Standard 6 (fairness)

Mr Jackson

[92] The complainants argued that several aspects of the item were unfair to Mr Jackson. The Authority has considered each allegation in turn.

[93] First, they complained that the item described Mr Jackson as “a man once filled with murderous rage”. Because he was legally insane at the time, they said, the term “murderous rage” was inflammatory and unfair. In the Authority’s view, this was a judgmental and somewhat careless description. However, it considers that the broadcaster’s choice of language on this occasion was not so unfair as to breach Standard 6.

[94] Second, the complainants were not aware of any evidence to support the statement that Ms Tobin had “packed his bags and told him to go”. The Authority accepts the information provided by CanWest – that one of Ms Tobin’s friends and her son had been told that she had asked Mr Jackson to leave the day before she was killed, and that the police had found Mr Jackson’s bags packed and ready to go outside the house. In the Authority’s view, this was sufficient evidence upon which to base the statement. It does not uphold this part of the complaint.

[95] Third, the complainants objected to statements that Mr Jackson and Ms Tobin had “argued frequently” and that she had been having difficulty with him in the weeks prior to the murder. The complainants argued that the programme should have made the point that Mr Jackson’s increasingly bizarre behaviour was caused by a 6–8 week psychotic episode. The Authority observes that the programme did report Dr Simpson’s diagnosis that Mr Jackson had suffered a 6–8 week acute psychosis. While an explicit connection between his psychosis and the behaviour described in the item was not made, the Authority considers that viewers would have been able to make the connection from the information provided. It finds that the programme was not unfair to Mr Jackson in this respect.

[96] Fourth, the complainants argued that the programme should not have included comments that Mr Jackson’s ex-wife “doubts his insanity” and “would not appear due to fears for her safety”. The Authority considers that, having had a close relationship with Mr Jackson, his ex-wife had a valid perspective which CanWest was entitled to report. The Authority finds that was not unfair to include information from Mr Jackson’s ex-wife.

[97] Accordingly, the Authority declines to uphold the complaint that the item was unfair to Mr Jackson.

Dr Sandy Simpson

[98] The complainants maintained that the programme was unfair to Dr Simpson. They argued that the clear implication of the programme was that since Mr Jackson was faking insanity, Dr Simpson had been taken in by the performance. The Authority notes that Dr Simpson’s views on Mr Jackson’s sanity were clearly reported in the item. Further, the broadcaster offered Dr Simpson the opportunity to participate the programme. Had he agreed to this request Dr Simpson could have commented further on the matter of Mr Jackson’s sanity, but he declined to be interviewed.

[99] Accordingly, the Authority finds that the programme was not unfair to Dr Simpson.

The Tobin Family

[100] The complainants were concerned that CanWest took advantage of the Tobin family’s vulnerability and added to their grief. The Authority finds that the Tobin family was treated fairly in the broadcast. In reaching this conclusion, it takes into account CanWest’s statement that talking about the events had “lifted a lot of burden” from the family. The Authority considers that the programme provided the family with an opportunity to talk about the death of Ms Tobin, and they were entitled to give their opinions about Mr Jackson. It does not uphold this part of the complaint.

 

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

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
21 March 2006

Appendix

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

  1. Mr Gotlieb and Mr Jackson’s formal complaint – 26 May 2005
  2. CanWest’s decision on the formal complaint – 28 June 2005
  3. Mr Gotlieb and Mr Jackson’s referral to the Authority – 11 July 2005
  4. CanWest’s response to the Authority – 17 August 2005
  5. Further information from Mr Gotlieb and Mr Jackson – 1 November 2005
  6. Further information from CanWest – 7 December 2005
  7. Letter from the Crown solicitor – 18 January 2006
  8. Further letter from the Crown solicitor – 13 February 2006
  9. Response from CanWest – 7 March 2006