Hill and Gardner and TV3 Network Services Ltd - 1998-007, 1998-008, 1998-009
Members
- S R Maling (Chair)
- J Withers
- L M Loates
- R McLeod
Dated
Complainants
- Allan Hill
- Gladys Gardner
Number
1998-007–009
Programme
20/20: "Fighting BackBroadcaster
TV3 Network Services LtdChannel/Station
TV3
Summary
The recent publication by convicted murderer Gay Oakes of her book "Decline into
Darkness" was referred to in a 20/20 item entitled "Fighting Back", broadcast on 3
August 1997, which reviewed her case and in its context, the unsuccessful defence of
battered woman's syndrome she advanced.
Mr Hill, a step-brother of Douglas Gardner, the man murdered by Ms Oakes and
buried in her garden for fourteen months, complained to TV3 Network Services Ltd
that the item was inaccurate and unbalanced. It was inaccurate, he said, as the
evidence did not prove that Mr Gardner had been violent towards Ms Oakes, and it
was unbalanced as it had dealt with Mr Gardner and his family insensitively.
Mrs Gardner, mother of the victim, complained that the 20/20 programme intruded
into the grief of the family by broadcasting pictures of Douglas Gardner, the grave
site, and other pictures relating to the circumstances of his death. Mrs Gardner also
complained that the summing up by the presenter of the programme was inappropriate
and contained statements which had not been proven as fact. She considered that the
family's privacy had been breached by the broadcasts.
Arguing that the evidence revealed that Mr Gardner had been violent even if the
defence was not successful, TV3 maintained that the item had focussed on battered
woman's syndrome in a balanced way. It considered that the pictures broadcast were
not offensive or objectionable to ordinary people, and the public facts surrounding Mr
Gardner's death were legitimately in the public domain as matters of public interest.
TV3 advised that while the reporting of news and current affairs did at times cause
hurt, it could not be censored.
Dissatisfied with TV3's decision, Mr Hill and Mrs Gardner referred their complaints
to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaints.
Decision
The members of the Authority have viewed the item complained about and have read
the correspondence (summarised in the Appendices). In this instance, the Authority
determines the complaints without a formal hearing.
The Programme
In 1994, Gay Oakes was convicted of the murder of Douglas Gardner and sentenced
to life imprisonment. Evidence was presented that she poisoned him early in 1993 by
mixing prescription pills in his coffee and, after he died, she dug a grave in her garden
and he was buried there for 14 months. The defence of battered woman's syndrome
was advanced at the trial, but it was not successful. That defence was also rejected by
the Court of Appeal and the Privy Council.
Ms Oakes wrote an account of these events, entitled "Decline into Darkness", and it
was published in August 1997. TV3's current affairs programme, 20/20, which had
screened earlier stories on the trial, broadcast an item on 3 August called "Fighting
Back". 20/20's earlier coverage had included an interview with Ms Oakes when she
was on bail following her conviction, and before sentence.
The item screened on 3 August contained biographical details about Ms Oakes, details
about her relationship with Mr Gardner, a summary of the murder, and a lengthy
interview with Judith Ablett-Kerr QC, who argued Ms Oakes' case before the Privy
Council. The Authority acknowledges that the trial of Ms Oakes has been a high
profile event, especially in Christchurch, and that it has received extensive media
coverage.
The Complaints
Two members of the Gardner family complained to TV3 about the item - Gladys
Gardner, who is the victim's mother, and Allan Hill, a step-brother of the victim.
Mr Hill considered that the item was unbalanced in that it advanced the defence
arguments put at the trial, while omitting the evidence which referred, for example, to
Ms Oakes' gambling and drinking. Further, he said, it gave insufficient recognition to
the conclusion reached at the trial and the appeals, that Ms Oakes had committed what
he called a cold and calculated murder. Mr Hill also said that despite a number of
requests not to use photographs of Mr Gardner and the grave in the garden, TV3
insensitively continued to use them.
This last point was the focus of Mrs Gardner's complaint. She considered the use of
the pictures to be inconsiderate to a family which was trying to put the tragic death of
a family member behind them. She contended that it was a breach of privacy. In
addition, she referred to the presenter's comments at the end of the item which, she
said, were presented with an attitude which was condescending to the family, and
which suggested that matters of opinion were proven facts.
The Standards
Following an exchange between TV3 and the complainants about the status of the
correspondence, TV3 assessed the complaints under standards G1 and G6 of the
Television Code of Broadcasting Practice, and s.4(1)(c) of the Broadcasting Act 1989.
Standards G1 and G6 require broadcasters:
G1 To be truthful and accurate on points of fact.
G6 To show balance, impartiality and fairness in dealing with political
matters, current affairs and all questions of a controversial nature.
Section 4(1)(c) requires broadcasters to maintain standards consistent with the privacy
of the individual.
TV3's Response to the Complainants
Dealing first with standard G1, TV3 advised Mr Hill:
The Committee draws to your attention comments made by Justice Hardie Boys
in his delivery of the judgement on behalf of the Appeal Court, ". . . There has
been a lengthy relationship, from which four children have been born, but it was
marked by numerous episodes of violence towards her and, it appears, by sexual
abuse of one of her two children by her earlier marriage".
Justice Hardie Boys also said ". . . from both Crown and Defence witnesses thejury learnt in very full detail of the violence that Mrs Oakes has endured".
Mr Hill attached to his complaint some transcripts of the evidence given at Ms Oakes'
trial. As they were incomplete, TV3 did not accept that they were of assistance in
deciding whether Mr Gardner was violent towards Ms Oakes.
As for standard G6, TV3 maintained that the item was about battered woman's
syndrome, and how it related to Ms Oakes' case. It pointed out that battered woman's
syndrome was a legitimate aspect of a defence to a criminal charge, and Ms Ablett-
Kerr QC had spoken about its applicability to the Oakes' case. Referring again to
Justice Hardie Boys' comments, TV3 argued that the evidence of Mr Gardner's
violence towards Ms Oakes did not require balancing comment. It added:
[TV3] notes friends and family of Mr Gardner have had the opportunity, on the
TV3 Network and on numerous occasions around the time of the trial, to
challenge evidence of Mr Gardner's violence towards Ms Oakes.
The privacy complaint was considered under principles (i) and (ii) of the Privacy
Principles applied by the Authority in its determination of privacy complaints. They
read:
i) The protection of privacy includes protection against the public disclosure
of private facts where the facts disclosed are highly offensive and
objectionable to a reasonable person of ordinary sensibilities.
ii) The protection of privacy also protects against the disclosure of some
kinds of public facts. The "public" facts contemplated concern events
(such as criminal behaviour) which have, in effect, become private again,
for example through the passage of time. Nevertheless, the public
disclosure of public facts will have to be highly offensive to a reasonable
person.
While accepting that Mr Gardner's death was shocking, especially for his family and
friends, TV3 did not regard the details - which were in the public domain - as highly
offensive and objectionable. Moreover, principle (ii) was not contravened, it said, as
the recent publication of Ms Oakes' book renewed the legitimate public interest both
in the case, and the relevance of battered woman's syndrome.
Turning to the other matters raised by Mrs Gardner, TV3 said that she and/or other
family members on a number of occasions had appeared on news and current affairs
programmes stating that Mr Gardner had not been abusive to Ms Oakes. It concluded:
It remains for [TV3] to extend its sympathy to you and your family. To lose a
family member under any circumstances is painful, the circumstances of Doug's
death must be particularly harrowing. [TV3] regrets any hurt caused by TV3
broadcasts but believes that, while the reporting of news and current affairs
does, at times, cause hurt, it cannot be censored.
The Referrals to the Authority
Mr Hill responded in detail to TV3 when he referred his complaint to the Authority.
Pointing out that Ms Oakes described 20/20's reporter as a personal friend, he claimed
that the release of the book was planned to coincide with the broadcast complained
about. He considered that this amounted to bias, and indicated that the thrust of the
item was not battered woman's syndrome but, as was evident by the use of
photographs of Mr Gardner, part of Ms Oakes' campaign for parole. He also
continued to allege, on the basis of comments from two of Ms Oakes' children, and
despite TV3's protestations to the contrary, that TV3 had paid Ms Oakes for her
participation in an earlier programme.
Mr Hill persisted in his argument that, apart from the claims of defence counsel, there
was no evidence that Mr Gardner was violent towards Ms Oakes. Rather, and
contrary to the approach taken in the 20/20 item, the picture of Ms Oakes which
emerged from the trial was that of trained nurse who planned her partner's death
through the use of drugs. He wrote:
The argument of self-defence was an afterthought and putting the pills in the
coffee was not a sudden loss of control but deliberate. Oakes administered
drugs to the man over a long period and evidence from witnesses, showed
Oakes was able to fabricate, embellish and lie about the disappearance of Mr
Gardner. Oakes' evidence was a performance of operatic scale and her ability
to remember dates, times and events were mind boggling.
As for the quotations from Justice Hardie Boys, Mr Hill insisted that they had been
taken out of context. The judge, he wrote, had accepted the trial judge's summing up,
and, he added:
Justice Hardie Boys said neither the guilty verdict nor the reality of battered
woman's syndrome were an issue in this case.
Noting that apart from Ms Oakes herself, the defence had called little evidence, Mr
Hill maintained that the programme was biased in giving undue weight to the defence
case. Acknowledging that he had submitted only some of the transcript, he accused
TV3 of selectivity also in the quotations it had used. Mr Hill included some other
comments from Justice Hardie Boys which, he believed, endorsed his perspective on
the role of battered woman's syndrome in the trial.
Mr Hill questioned the justification to describe Ms Ablett-Kerr as an expert on
battered woman's syndrome, and he reiterated his argument that there was minimal
evidence given that Ms Oakes was ever beaten by Mr Gardner.
In response to TV3's comment that Mr Gardner's family had had numerous occasions
to respond on television to the claims from Ms Oakes and her supporters, Mr Hill said
the family had declined to comment at the time of the trial on police advice, and
subsequent coverage involving the family had been small.
Mr Hill concluded by requesting on behalf of the family that TV3 did not use again
the photographs of Mr Gardner, his body or the hole in which he had been buried for
14 months. They were, he said, no longer newsworthy. That material, he said in
conclusion:
Serves to open family wounds again. Remember there are 13 nephews andnieces, many uncles and aunts, brothers and sisters and a mother, who should be
allowed to get on with their lives without the screening of what the jury found
was a cold calculating murder.
When Mrs Gardner referred her complaint to the Authority, she emphasised the
distress she felt when photographs of her son and the grave site were screened on
television.
TV3's Report to the Authority
In its report to the Authority, TV3 said Mr Hill seemed to be attempting to re-litigate
the entire case. In view of its earlier denial that 20/20 had paid for the Gay Oakes
story, TV3 said that it would regard repetition of the claim as defamatory. It provided
a list of the occasions on which comment from Mr Gardner's family and friends had
been included on TV3 news items. It also said the relationship between its reporter
and Ms Oakes was professional. TV3 concluded:
The Gay Oakes case has become a focal point of the Battered Woman's
Syndrome debate. The lack of understanding of the syndrome within our legal
system was at the centre of Judith Ablett-Kerr's application to the Privy
Council. The issue was current and of public interest. Gay Oakes' book gave
the matter relevancy and added interest.
The Standards Committee can understand Mr Hill's reluctance to accept Doug
Gardner was abusive towards Gay Oakes. However, the Committee does not
believe Mr Hill should attempt to use the Authority and the Codes of
Broadcasting Practice as a brush with which to paint a picture that distorts
reality.
In his final comment to the Authority, Mr Hill repeated the concerns he had raised in
his earlier letters of complaint.
The Authority's Findings
The Authority's task is to determine the complaints about the 20/20 item from the
deceased's mother and step-brother. Considerable information has been provided
from Mr Hill in particular, but it is not the Authority's function to decide the
relevance of battered woman's syndrome to the case against Gay Oakes, or indeed,
the extent to which Mr Gardner used violence against Ms Oakes. Taking into account
the quotations from the judgment of Justice Hardie Boys supplied by both the
complainants and TV3, the Authority accepts that there was evidence given by some
witnesses which justified defence counsel in bringing the battered woman's syndrome
before the Court. The Authority also acknowledges that this defence was rejected at
the trial, and that rejection was not overturned by either the Court of Appeal or the
Privy Council.
Regardless of the extent to which the defence was relevant, the trial of Ms Oakes
raised battered woman's syndrome in the public consciousness. Thus, the Authority
accepts, the publication of Ms Oakes' book was an appropriate occasion for the issue
to be explored in a television current affairs item. Ms Oakes and the syndrome are
linked and, in the Authority's opinion, an item which explored the syndrome could
trace the public knowledge of it to the trial. TV3 maintained that battered woman's
syndrome was the focus, while the complainants argued that Ms Oakes and the trial
were the item's themes.
By noting that the two are closely linked, the Authority does not consider that it is
necessary to rule on this dispute as to what was precisely the item's principal focus.
The Authority notes that the release of the book seems to have been the catalyst for
the story. Because of this linkage, the Authority accepts the item was entitled to refer
to the relationship between Mr Gardner and Ms Oakes.
At the same time, the Authority understands the distress felt by Mr Gardner's family.
Ms Oakes raised battered woman's syndrome as a defence. It was unsuccessful. The
jury found her guilty of murder. As the Authority recorded above, it does not intend
to review the evidence given at the trial to speculate as to whether the defence was
nearly successful, or whether it was put forward as a tactic by a calculating killer.
Nevertheless, the ongoing relationship in the public consciousness between Ms Oakes
and the defence involves some opprobrium being placed on Mr Gardner - whether
justified or not. As this reflects negatively on Mr Gardner, the Authority believes that
any in-depth examination of the trial, as occurred in this programme, must present the
material advanced at the trial in a way which carefully summarises the evidence. This
is of particular importance if photographs of Mr Gardner, and the graphic pictures of
the gravesite in the garden, are included.
Having dealt with these background matters and detailed the areas it does not intend
to determine, and the approach it intends to adopt, the Authority focuses on the
matters raised in the complaints.
There are four specific matters which form the substance of these complaints. They
are:
* The item was inaccurate as it accepted, contrary to the evidence presented
at the trial, that Mr Gardner had been violent to Mr Oakes.
* The item was not balanced in that it did not deal sensitively with the
deceased or his family.
* The item intruded on the grief felt by the Gardner family. The pictures of
Mr Gardner and the shots of the grave were particular examples of such
intrusion.
* The broadcast breached the family's privacy.
The Authority reaches the following decisions on each of these points:
* The programme was not inaccurate, as evidence of violence was given at
the trial.
* The balance standard does not cover insensitivity.
* The standard relating to intrusion into grief does not apply as the item did
not include footage of the family. Furthermore, the material shown was a
matter of public record.
* As the family was not included in the item, the broadcast did not breach
its privacy.
In addition, to the above specific points, the Authority interprets Mr Hill's complaint
to allege an overall imbalance in the broadcast. He suggests that 20/20's
interpretation of the case largely overlooked the matters raised by the prosecution at
Ms Oakes' trial.
In response, TV3 denied that the item approached the case with a predetermined view
of the trial. The broadcast, TV3 continued, dealt with battered woman's syndrome.
The publication of Ms Oakes' book on the topic, it said, involved revisiting aspects of
the trial to give the book an appropriate setting. Further, the references to the trial
necessitated traversing the failed defence argument.
The Authority acknowledges that battered woman's syndrome was a main focus of
the broadcast, and that there were references to the trial in order to illustrate its
possible applicability. In these circumstances, the Authority accepts that it is not
necessary to cover all the arguments raised by both sides. The material screened was
advanced on the basis that the syndrome had been raised as a defence, and it was clear
that the defence had been unsuccessful.
Taking these matters into account, and while understanding the distress which the
portrayal of the material causes to Mr Gardner's family, the Authority nonetheless
accepts that the use of footage relating to the crime and the trial was justified.
Further, it accepts that its future use can continue to be justified, while the case
remains one of considerable public interest.
Despite this determination on the substance of the complaints, there is some specific
footage about which the Authority expresses some concern. This footage involved the
reconstruction of the manner in which Ms Oakes was said to have mixed the
prescription pills into Mr Gardner's cup of coffee on the night he died. As depicted in
the programme, this was a spur-of-the-moment decision made under severe stress,
whereas, as Mr Hill argued, the prosecution case, which proved successful, was that
the act was premeditated.
The Authority does not object to the use of some degree of dramatic licence in
depicting a crime in an item where the reconstruction of a crime is relevant to the
broadcast. However, it will become concerned if the reconstruction is depicted in
such a way to invite a conclusion which is at variance with the facts.
Here, the depiction of the murder appears to be largely based on Ms Oakes'
recollection of events. The suggested spontaneity of her actions, and her lack of the
necessary animus or intent, was not accepted by the jury, in that it convicted her of
murder. Furthermore, it was stated in the programme that Ms Oakes' appeals to the
Court of Appeal and Privy Council were unsuccessful. In the Authority's opinion,
nevertheless, the point that the jury did not accept the Ms Oakes's claim that she had
diminished responsibility for her actions, should have been made clearer.
In view of the number of contentious trials recently, and their subsequent review by
television current affairs programmes, the Authority reminds broadcasters of the
imperative to ensure overall balance. This is of particular relevance when the
approach taken in an item is to focus on the arguments advanced by one party. An
undue amount of dramatic licence, or an excessive focus on one side of a contentious
issue, may run the risk of unfairness and/or partiality which will result in a breach of
standards. In this instance, the sequence referred to fell marginally short of a breach.
On the current complaints, the Authority concludes that the standards were not
contravened by the 20/20 item on battered woman's syndrome broadcast by TV3 on 3
August 1997.
For the above reasons, the Authority declines to uphold the complaints.
Signed for and on behalf of the Authority
Sam Maling
Chairperson
12 February 1998
Appendix
Mr Hill's Complaint to TV3 Network Services Ltd – Undated
Allan Hill of Wellington complained to TV3 Network Services Ltd about the item
"Fighting Back", broadcast by TV3 on 20/20 between 6.30–7.30pm on Sunday 3
August 1997.
While the item referred to the murder of Douglas Gardner, Mr Hill considered that it
in fact promoted the murderer, Gay Oakes, and her book. The victim's family, he
added, were treated insensitively. He recalled that TV3 had been asked on several
occasions not to screen photographs of Mr Gardner, and scenes of the grave, in view
of the emotional wounds inflicted by the murder. However, he wrote, TV3 continued
to advance only Ms Oakes' point of view, despite the evidence of her gambling and
drinking problems. Further, Mr Hill emphasised, she had murdered her partner by
poisoning him.
Mr Hill stated that the court transcripts showed that Ms Oakes committed a cold and
calculated murder and there was no evidence, other than that which she gave, that Mr
Gardner had been violent. Mr Hill noted that he was Mr Gardner's step-brother.
Further Correspondence
In its initial reply (dated 11 August 1997), TV3 said that it did not want to cause
distress, but it had presented the facts as they appeared. In response to one matter
raised by Mr Hill, it stated that TV3 had never paid a fee to Ms Oakes as alleged, and
reported that even the Counsel for the Prosecution had accepted that Douglas Gardner
had been violent to Gay Oakes.
Mr Hill sought the assistance of the Broadcasting Standards Authority at this time and
it was arranged for his undated letter (referred to above) to be dealt with as a formal
complaint alleging some factual inaccuracies and a lack of balance.
Mr Hill also provided part of the transcript of the evidence presented at Ms Oakes'
trial, which he said, disclosed that Ms Oakes' allegations of violence by Mr Gardner
were not supported by the evidence of other witnesses.
TV3's Response to the Formal Complaint – 22 September 1997
Dealing first with the standard G1 aspect, TV3 pointed out that Justice Hardie Boys,
on behalf of the Court of Appeal, had referred to "numerous episodes of violence"
towards Ms Oakes, and witnesses at the trial had told the jury of the violence Ms
Oakes had endured. It considered the transcripts supplied by Mr Hill were incomplete
and, moreover, some of the witnesses were not identified.
Relying on the Court of Appeal's comments, TV3 declined to accept that the accuracy
requirement in standard G1 had been breached.
As for standard G6, TV3 considered that battered woman's syndrome was the issue
addressed in the programme and, further, its relationship to the Gay Oakes' case.
TV3 noted that the lawyer interviewed, Ms Judith Ablett-Kerr QC, had particular
expertise in the area, and that battered woman's syndrome was accepted as a
legitimate defence. It wrote:
The screening of the 20/20 item "Fighting Back" coincided with the
publication of a book written by Gay Oakes titled 'Decline into Darkness'.
The 20/20 item investigated the syndrome in general and as it related to GayOakes. The Committee believes this is a legitimate area of investigation and is
in the public interest.
TV3 added:
The Committee notes friends and family of Mr Gardner have had the
opportunity, on the TV3 Network and on numerous occasions around the time
of the trial, to challenge evidence of Mr Gardner's violence towards Ms Oakes.
TV3 declined to uphold the entire complaint.
Mr Hill's Referral to the Broadcasting Standards Authority – 15 October 1997
Dissatisfied with TV3's response, Mr Hill referred the complaint to the Broadcasting
Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
Mr Hill considered that TV3 had "shown complete and utter contempt" for the
Gardner family. He contested TV3's remark that the publication of the book merely
coincided with the 20/20 item, advising that the book was embargoed until the
broadcast, and that 20/20's reporter was described in the book by Ms Oakes as a
"personal friend". He argued:
This proves to me that the programme was a direct book review. Battered
woman's syndrome was only a secondary part of the programme.
A programme dealing with the syndrome, he added, would not have needed to include
a photograph of Mr Gardner or the backyard grave in which he had been buried. He
maintained that most of the item dealt with Ms Oakes and her family, rather than the
syndrome.
Mr Hill also reported that two of Ms Oakes' children had stated to many people that
she, and her daughter, had been paid by TV3 for an exclusive story.
Referring to the Crown Prosecutor's summing up at Ms Oakes' trial, Mr Hill said she
was described as a calculating person whose argument of self-defence was an after-
thought.
As for TV3's reference to the Court of Appeal, Mr Hill said the statement quoted was
taken out of context. He cited extracts from the Court of Appeal's ruling when it was
said that battered woman's syndrome was not the issue. The trial judge's ruling
which resulted in the jury convicting Ms Oakes for murder, he observed, was not
overruled on appeal. Mr Hill acknowledged that he had not supplied a full transcript,
but continued to point out that in this case battered woman's syndrome was not
accepted as a defence.
In regard to TV3's statement that the item was about battered woman's syndrome as it
applied to Ms Oakes, Mr Hill cited the comment by Hardie Boys J in the Court of
Appeal that the syndrome, by itself, was not a justification for the commission of a
crime.
Mr Hill also disputed TV3's contention that Ms Ablett-Kerr was an expert on the field
of battered woman's syndrome. She had only appeared for Ms Oakes in the appeal to
the Privy Council, he wrote. He also pointed out that no other cases involving the
syndrome were referred to in the item. As the Court did not accept the applicability of
the defence in this instance, Mr Hill argued that the evidence did not support the
contention that Mr Gardner had been violent towards Ms Oakes. Further, he stated,
no witnesses gave evidence that Ms Oakes was ever seen with signs of violence on
her. He wrote:
It was a fabricated story to gain public sympathy in the hope she might get away
with murder, under the guise of battered woman's syndrome.
TV3, Mr Hill stated, had pursued Ms Oakes' side of the story in a biased way in
several programmes. The victim's side had not been advanced and, Mr Hill pleaded
to TV3 to cease using photographs of Mr Gardner, or the hole in which Ms Oakes
buried him for 14 months. Those photographs had no newsworthiness, he said:
But serve to open family wounds again. Remember there are 13 nephews and
nieces, many uncles and aunts, brothers and sisters and a mother, who should be
allowed to get on with their lives without the screening of what the jury found
was a cold calculating murder.
TV3's Report to the Authority – 20 November 1997
TV3 began by questioning the relevance of much of the material advanced by Mr Hill.
Rather than complain about the specifics in the broadcast, it said, Mr Hill seemed to
be producing information in an effort to prove that Douglas Gardner was not violent
to Gay Oakes. While referring to the evidence produced in Court, TV3 said that it
was an issue it did not intend to debate with Mr Hill.
TV3 described the specific allegation that it "paid" for the Ms Oakes' story as untrue.
Repetition of these comments, it warned, would be regarded as defamatory.
For the Authority's information, TV3 supplied the story rundowns of news items on
the Ms Oakes' story. They disclosed that family and friends of Mr Gardner had
commented on a number of occasions. TV3 also maintained that its reporter's
relationship with Ms Oakes was, and always had been, professional. TV3 concluded:
The Gay Oakes' case has become a focal point of the Battered Woman's
Syndrome debate. The lack of understanding of the syndrome within our legal
system was at the centre of Judith Ablett-Kerr's application to the Privy
Council. The issue was current and of public interest. Gay Oakes' book gave
the matter relevancy and added interest.
The Standards Committee can understand Mr Hill's reluctance to accept Doug
Gardner was abusive towards Gay Oakes. However, the Committee does not
believe Mr Hill should attempt to use the Authority and the Codes of
Broadcasting Practice as a brush with which to paint a picture that distorts
reality.
Mr Hill's Final Comment – Received 3 December 1997
Mr Hill began by expressing his opinion that TV3, again, had twisted the facts to
justify its interpretation of the Gay Oakes case. He continued:
I start by referring to my first complaint that there was no reason to screen my
mother's or Dougie's photos on the 20/20 Fighting Back programme, or the
lifting of Dougie's body out of the hole in which Gay Oakes tried to conceal a
horrible crime. This has nothing to do with "the book review" of Gay Oakes'
book.
Mr Hill maintained that TV3 misquoted the evidence. Dr Don McLeod, a Crown
witness who had been Ms Oakes' doctor from July 1992 to September 1993, he said,
had noted physical marks on Ms Oakes on one occasion only, and that had coincided
with the evidence of two others who reported seeing her in a fight in a hotel.
While it might be Ms Oakes' prerogative to describe the 20/20 reporter as a personal
friend, Mr Hill argued that the item was still biased in showing the hole where Mr
Gardner's body had lain for 14 months.
There was no evidence, Mr Hill continued to contend, in support of Ms Oakes' story
that Mr Gardner was violent. The correct picture, Mr Hill said, was that Ms Oakes
was the aggressor and, consequently, TV3's presentation had distorted reality.
Mr Hill concluded:
I once again on behalf of the family and my mother, ask that TV3 be stopped
from screening photos of Dougie, Mum or the hole in which he was hidden.
This serves no purpose at all, except to open wounds in the family again and
again, when we should be able to get on with our own lives, without TV3
continuing to harass us, by showing it over and over.
Appendix ll
Mrs Gardner's Complaint to TV3 Network Services Limited – 8 August 1997
Gladys Gardner of Christchurch complained to TV3 Network Services Ltd that the
20/20 programme Fighting Back broadcast on 3 August 1997 showed pictures of her
son, the place where he was buried and other pictures relating to the circumstances
surrounding his death. She considered the pictures to be inconsiderate to a family
trying to put the tragic event of her son's death behind them.
Mrs Gardner also wished to complain about the manner in which the presenter
summed up the 20/20 programme. She said she found the attitude condescending and
believed her to be stating things that were not proven fact. She advised that at no time
had any member of the Gardner family ever been interviewed by TV3. She stated at
the end of her letter that she believed the privacy of her family had been breached by
the broadcast.
TV3's Response to the Formal Complaint – 8 September 1997
TV3 considered the complaint under the Authority's privacy principles i) and ii).
These have been developed by the Authority as guidelines in the interpretation of
s.4(1)(c) of the Broadcasting Act, which provides that every broadcaster is responsible
for maintaining in its programmes and their presentation, standards which are
consistent with the privacy of the individual.
TV3 said that while the circumstances concerning Mr Gardner's death were shocking
and tragic, particularly for his family, they were public knowledge and were not
offensive and objectionable to a reasonable person of ordinary sensibilities. On the
basis that the publication of Ms Oakes' book and the attempts by her barrister to have
her case reviewed gave the issues legitimate public interest, it declined to uphold the
complaint.
In regard to the other concerns raised in Mrs Gardner's complaint, TV3 pointed out
that no breach of broadcasting standards had been cited. It advised that a separate
response would be made to Mrs Gardner regarding her concerns over the use of
pictures of Mr Gardner and events surrounding his death.
TV3 concluded by stating:
The [Standards] Committee regrets any hurt caused by TV3 broadcasts but
believes that, while the reporting of news and current affairs does, at times,
cause hurt, it cannot be censored.
Other Correspondence: TV3 Response to Mrs Gardner – 11 September 1997
In response to Mrs Gardner's complaint about the use of pictures of her son and the
site where he was buried, TV3 wrote:
I must inform you a full and complete archive is essential to any news
organisation and is there to be used appropriately to inform viewers as and
when that archive material is relevant and is of legitimate public interest.
3 National News and Current Affairs can not accede to requests to delete or
limit archive material in its possession. I can assure you that if and when
images you seek to have restricted are used by TV3, it will be done when there
is a legitimate public interest and with proper consideration.
Mrs Gardner's Referral to the Authority – 16 September 1997
Dissatisfied with TV3's responses, Mrs Gardner referred the complaint to the
Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
Mrs Gardner considered that both replies from TV3 were in response to her complaint
against the particular 20/20 programme, and she wished both answers to be
considered by the Authority.
She continued:
I was told that if I wrote and asked for no more pictures of my son Douglas
Gardner and the grave site to be shown on TV my request would be acted
upon. This has not happened and the continual showing of these things is very
distressing, not only to myself but other members of my family especially
Doug's nephews and nieces. How can we ever get over the tragedy if the
pictures are shown all the time.
TV3's Response to the Authority – 30 September 1997
TV3 advised the Authority that it had on numerous occasions broadcast comment
from the Gardner family denying claims of Mr Gardner's violent behaviour towards
Ms Oakes. TV3 enclosed news scripts as evidence of this.
TV3 also cited comments made by Justice Hardie Boys in the judgment of the Court
of Appeal which, it said, confirmed that there was evidence pointing to violence
perpetrated by Mr Gardner.