BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News and Sunday – items discussed suppressed evidence from the David Bain trial that had been released by the courts – allegedly unbalanced, inaccurate and unfair

Findings
One News

Standard 4 (balance) – item did not discuss a controversial issue of public importance – not upheld

Standard 6 (fairness) – item reported on the evidence released by the court in a neutral manner – contained comment from Mr Bain’s supporter Mr Karam – reporter explained reasons for the evidence being suppressed – not upheld

Standard 5 (accuracy) – subsumed into consideration of Standard 6

Sunday

Standard 4 (balance) – item did not discuss a controversial issue of public importance – not upheld

Standard 6 (fairness) – item contained comment from those individuals whose evidence had been suppressed – contained comment from Mr Karam – Mr Bain treated fairly – not upheld

Standard 5 (accuracy) – subsumed into consideration of Standard 6

This headnote does not form part of the decision.

Broadcast

One News item

[1]   An item on One News, broadcast on TV One at 6pm on 12 June 2009, reported on the decisions of the Supreme Court and Court of Appeal to release suppressed evidence from David Bain’s 2009 re-trial on charges of murdering his family.

[2]   The report discussed two pieces of previously suppressed evidence. The first was a part of Mr Bain’s 111 call to emergency services where a prosecution witness had alleged Mr Bain had said “I shot the prick” while talking to the operator. The second was the evidence of an ex-school friend of Mr Bain who had alleged that Mr Bain had told him that he could commit a sex crime and get away with it by using his paper-run as an alibi.

[3]   As the major stories of the evening were introduced a news reader said:

Confession or confusion? David Bain’s 111 call, we reveal what the jury didn’t get to hear at the David Bain re-trial.

[4]   The news readers introduced the item by saying:

Did David Bain confess to killing his father? That’s a question the jury in his murder re-trial would have had to consider if they were allowed to hear all the evidence.

And, in a dramatic development today, the highest court in the land released details of what was suppressed at the trial.

“I shot the prick”, words the Crown says you can hear on David Bain’s 111 tape. But even defence and Crown experts agree there are no clear words there at all.

[5]   Long-time David Bain supporter, Joe Karam, was shown commenting that there was no confession on the tape and that the part of the tape suppressed did not contain any words.

[6]   The reporter said that police had re-analysed the tape with more sophisticated equipment and had discovered what they believed to be the words “I shot the prick”. The reporter said that both Crown and defence experts had analysed the particular excerpt from the call and that none could determine what, if anything, was said by Mr Bain.

[7]   The reporter explained that other evidence that the defence had successfully suppressed included evidence from an ex-school friend of Mr Bain who said that, as a teenager, Mr Bain had told him about how he could commit a sexual offence against a female jogger and use his paper-run as an alibi to get away with it.

[8]   Footage was shown of Mr Bain’s ex-school friend saying that he believed his evidence was relevant and should have been put to the jury.

Sunday item

[9]   An item on Sunday, broadcast on TV One at 7.30pm on Sunday 14 June 2009, looked at several pieces of previously suppressed evidence from the David Bain re-trial including:

• evidence from an ex-school friend that Mr Bain had allegedly told him that Mr Bain could commit a sex crime against a female jogger and use his paper-run as an alibi

• evidence from another ex-school friend who said that Mr Bain had told him that he would like to commit a sex crime against a female jogger

• evidence from a friend of Mr Bain’s sister, Arawa, who alleged Arawa had told her that she and her family had been scared of Mr Bain, because he had been threatening them with a gun that he had kept in his bedroom

• evidence that a female friend of Margaret Bain (David’s mother) alleged that Margaret had told her in 1978 that Robin Bain (David’s father) seemed depressed and she thought he might get a gun and kill the family.

[10]   The presenter introduced the item by saying:

The verdicts are in, but will the David Bain case ever be laid to rest? This week there were more controversial revelations. First, that 111 call which police alleged contained the words “I shot the prick”. But did he say that? And if not, why did his lawyers fight all the way to the Supreme Court to keep that part of the call secret?

Then, the disturbing claims of David Bain’s sexual fantasies and how he may have planned to use his paper-run alibi to cover another alleged crime.

The witnesses weren’t allowed to testify, their evidence ruled inadmissible. For the first time you’ll get to hear what the jury did not.

[11]   The item contained interviews with the two ex-school friends of Mr Bain, the wife of one of the ex-friends, and the friend of Arawa, all of whom believed that they should have been able to present their evidence to the jury.

[12]   At the conclusion of the item, the presenter stated that David Bain and Joe Karam had been invited to appear on the programme, but had declined. The presenter said that Mr Karam had described the allegations as “rubbish”.

Complaint

[13]   Bryan Halliwell made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the coverage of the previously suppressed evidence by the One News and Sunday programmes breached broadcasting standards. He stated that his particular concern related to the coverage of the words “I shot the prick” allegedly contained in Mr Bain’s 111 call and the allegations that he had told two friends that he could commit a sex crime and use his paper-run as an alibi.

[14]   The complainant argued that the coverage lacked balance, fairness and accuracy because the programmes attacked the credibility of David Bain and his defence without attacking the credibility of the police and the other witnesses.

[15]   Mr Halliwell contended the contents of the coverage were aimed at persuading viewers that Mr Bain did state “I shot the prick” in his 111 call, that the jury had “got it wrong” and that he had been planning to commit a sex crime and use his paper-run as an alibi. As a result, he believed the coverage was unbalanced, unfair and inaccurate.

Standards

[16]   TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. These 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.

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

[17]   With respect to Standard 4 (balance), the broadcaster argued that, while some of the suppressed evidence was of definite interest to the public, it was not a controversial issue of public importance. It stated that the suppressed evidence related solely to Mr Bain’s re-trial and had no bearing on any further court proceeding as he was found not guilty.

[18]   TVNZ believed that the newly released evidence was very specific to the Bain case and would therefore not be considered to be of public importance. It stated that, in any event, both the One News and the Sunday items discussed why the previously suppressed evidence concerning the 111 call was ruled inadmissible and that the Sunday programme had discussed why other evidence had been suppressed. Further, it noted that both items contained comment as to why the evidence had been ruled inadmissible.

[19]   In addition, the broadcaster argued that further balance had been supplied by an item on its Close Up programme broadcast on 12 June 2009 in which Joe Karam explained why the suppressed evidence was seen as unreliable and unduly prejudicial by the courts. It also noted that the main allegations contained in the suppressed evidence were put to Mr Karam who provided a detailed rebuttal. The broadcaster declined to uphold the complaint that the coverage was unbalanced.

[20]   Turning to accuracy, TVNZ stated that it could not determine whether the allegations contained in the suppressed evidence were true and correct or not, as their veracity had not been tested in court. However, it noted that the suppressed evidence relating to the 111 call and that of the witnesses who were not allowed to give evidence had been released by the Supreme Court in the interests of open justice.

[21]   The broadcaster argued that neither item had claimed that the jury had “got it wrong” and that the allegations were discussed as allegations only. It declined to uphold the accuracy complaint.

[22]   Dealing with fairness, TVNZ reiterated that the Supreme Court had released the suppressed evidence in the interests of open justice and that the court had determined that the private interests of Mr Bain were outweighed by the public’s right to know. Further, it noted that Mr Karam had stated that he did not disagree with the Court’s decision.

[23]   The broadcaster considered that the information discussed in the One News and Sunday items was permitted by the courts, who had already considered whether the release of the information was fair to Mr Bain. It also pointed out that both items had discussed why the evidence was not viewed as admissible by the court. It declined to uphold the complaint that the items were unfair to Mr Bain.

Referral to the Authority

[24]   Dissatisfied with TVNZ’s response, Mr Halliwell referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[25]   With respect to balance, the complainant argued that the items had discussed a controversial issue of public importance and that TVNZ’s coverage was unbalanced because it did not include a similar examination of the Crown’s situation. He maintained that TVNZ’s coverage had a major effect on people’s views of Mr Bain and whether he was guilty or innocent.

Broadcaster’s Response to the Authority

[26]   TVNZ maintained that, while the items discussed a controversial issue, it was not one of public importance as Mr Bain had been found not guilty. It also reiterated that the Supreme Court had found it appropriate to release the suppressed evidence in the interests of open justice.

Complainant’s Final Comment

[27]   Mr Halliwell argued that the research he had provided was relevant in the circumstances and reiterated his belief that the items were unbalanced, inaccurate and unfair.

Authority's Determination

[28]   The members of the Authority have viewed recordings of the broadcasts complained about and the Close Up item broadcast on 11 June 2009 supplied by TVNZ and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 4 (balance)

[29]   Standard 4 requires broadcasters to provide balance when discussing controversial issues of public importance.

[30]   In the Authority’s view, the One News and Sunday items did touch on the controversial issue of whether the Court of Appeal and Supreme Court should have suppressed, and then released, the evidence of certain witnesses in David Bain’s trial. Those witnesses were given a chance to relay their evidence, and expressed the opinion that they should have been allowed to speak at trial.

[31]   However, while some controversy surrounded this issue, the programmes dealt solely with the release of evidence ruled inadmissible in the trial of one individual, David Bain. They did not canvass any wider issues about the suppression or release of evidence in general. While the public had a high degree of interest in the David Bain trial due to its particular circumstances, the Authority is of the view that the One News and Sunday items did not discuss a controversial issue of “public importance” to which Standard 4 applies.

[32]   Further, the Authority notes for the record that Standard 4 allows broadcasters to provide balance during the period of current interest. The Close Up item broadcast on 12 June included an interview with Joe Karam, who provided a detailed rebuttal of the main allegations contained in the released evidence and an explanation of why the Supreme Court considered it to be unreliable.  

[33]   Accordingly, the Authority declines to uphold the complaint that the One News and Sunday items breached Standard 4.

Standard 6 (fairness)

[34]   Standard 6 requires broadcasters to deal justly and fairly with any person taking part or referred to in a programme.

[35]   The Authority considers that the items neutrally reported on the evidence released by the courts. Playing the tape of Mr Bain’s 111 call in the One News item allowed viewers to decide for themselves whether anything had been said by Mr Bain. Further, the One News item made it clear that experts from both sides had analysed the tape and could not determine what, if anything, was said.

[36]   The Authority notes that, in the One News item, long-time Bain supporter, Joe Karam, provided comment saying that the tape did not contain a confession and that no words had been spoken in the segment released by the courts. It also notes that the news reporter explained to viewers that the Supreme Court had ruled the segment containing the alleged confession inadmissible because it considered it to be “unreliable”.

[37]   The Sunday presenter provided comment from Mr Karam stating his belief that the information provided by the interviewees was “rubbish”. The Authority considers that the information provided by the individuals in the Sunday item allowed viewers to make up their own minds about the merits of what they were saying.

[38]   The Authority also agrees with TVNZ’s point that the Supreme Court saw fit to release the previously suppressed evidence in the interests of open justice and that it would have considered issues of fairness to Mr Bain in doing so.

[39]   In these circumstances, the Authority concludes that Mr Bain was treated fairly in both programmes and it declines to uphold the Standard 6 complaint.

Standard 5 (accuracy)

[40]   In the Authority’s view, the points raised by Mr Halliwell under accuracy more readily relate to issues of fairness. It finds that the complainant’s concerns have been adequately addressed in its consideration of fairness and therefore subsumes its consideration of Standard 5 into its consideration of Standard 6.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 November 2009

Appendix

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

1.        Bryan Halliwell’s formal complaint – 16 June 2009

2.        TVNZ’s response to the formal complaint - 9 July 2009

3.        Mr Halliwell’s referral to the Authority – 20 July 2009

4.        TVNZ’s response to the Authority – 9 September 2009

5.        Mr Halliwell’s final comment – 28 September 2009