BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Diane Musgrave declared a conflict of interest and declined to take part in the determination of this complaint.

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – item focused on woman who had married Scott Watson who is in prison serving a life sentence for two murders – touched on aspects of the trial and conviction of Watson – used brief sequences from documentary Murder on the Blade? produced by the complainant – allegedly presented aspects of trial and evidence inaccurately and complainant argued that he had been misinformed by TVNZ of the use to which the sequences were to be put.

Findings
Standard 5 (accuracy) – some statements made in broadcast inaccurate – upheld

Standard 6 (fairness) – complainant not referred to in programme – not upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1] An interview with the woman who married Scott Watson, who is in prison serving a life sentence for the murders of Olivia Hope and Ben Smart, was the focus of an item on Sunday broadcast on TV One at 7.30pm on 27 June 2004.  The item used brief sequences from the documentary Murder on the Blade?, made by the complainant, in which he argued that Scott Watson had been wrongly convicted of the murders.

Complaint

[2] Keith Hunter complained to Television New Zealand Ltd, the broadcaster, about six statements made in the item which he contended were inaccurate.  Those statements were:

1. Presenter:    “The jury heard about Watson’s behaviour earlier in the evening” (and examples
                        of sexually explicit comments were given by witnesses).
2. Presenter:    “He‘s been described as aggressive, violent and a smart arse”.
3. Presenter:    “Evidence was heard at the trial that Scott could be violent.”
4. Presenter:    “Evidence of murder on the Blade included two hairs said to be Olivia’s and
                        scratch marks on the hatch.  The yacht, repainted by Watson, in the following days,
                        had been scrubbed clean”.
5. Presenter:    “It’s a bit creepy isn’t it, being on the boat where Ben and Olivia were murdered”. 
                       (This aspect was not referred to the Authority.)
6. Presenter:    “Before the murders, he’d been jailed for thefts and assaults.”
7. Presenter:    “While he was in prison in the late nineties there were reports of him assaulting
                        inmates”.

[3] Arguing that there had been considerable public debate about the murder convictions since the broadcast of his documentary Murder on the Blade?, including a petition to Parliament, Mr Hunter complained that the Sunday item “contradicted” both the petition and the documentary.  He noted that Sunday had borrowed his documentary before the broadcast of the recent item and, he contended, an intention to contradict some of its arguments “was one of Sunday’s objectives”.

[4] Mr Hunter explained that he had studied the transcript of the trial when making his documentary and he advised that the statements listed above made on Sunday were “to the best of my knowledge untrue”.  Given the work he and others had carried out, he contended that TVNZ had a responsibility now to justify its programme, rather than simply ignoring his arguments.

[5] Mr Hunter recalled that when asked if excerpts from Murder on the Blade? could be used, he had been told that the item was about Scott Watson’s wedding and the extracts would be used in order to “balance” the item’s editorial thrust.  However, he wrote, that did not occur.  The extracts were used and then the item contradicted, without reason, his contentions.  He continued:

Obviously, had I been aware of the real context I would not have allowed my film to have been used.  It seems that I was deliberately misinformed so that Sunday could gain access to my film.

[6] Mr Hunter asked TVNZ either to justify “properly” its claims about the trial and conviction, or retract them with an apology.  He attached a copy of a letter he had earlier written to the producer of Sunday in which he acknowledged that others might disagree with his views.  He also pointed out that he had justified his views and expected the same from those who disagreed with him.  However, that had not occurred in the Sunday item.  Rather, viewers would have been confused as extracts from his documentary offered, with justifications, a clear opinion that Scott Watson was innocent, while the Sunday item had, as statements of fact, constantly stressed his guilt.

[7] In the letter to Sunday’s producer, Mr Hunter provided in detail his arguments as to why the six statements listed in paragraph [2] were inaccurate.  He commented:

In sum, I suggest it is the role of programmes like Sunday to offer to clarify issues, not to obfuscate them.  In the context of the debate over Watson’s conviction your programme can only have achieved the latter.  In fact it seems to me that your programme deliberately set out to prejudice Watson in the eyes of the public, to counter the current moves in his favour regardless of truth or any logical argument based on truth.

Standards

[8] In view of the matters raised by the complainant, TVNZ assessed the complaint under Standard 5 of the Free-to-Air Television Code of Broadcasting Practice which reads:

Standard 5 Accuracy

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

Broadcaster's Response to the Complainant

[9] TVNZ said it was somewhat “bewildered” by the complaint as it seemed to be suggesting that because TVNZ had screened Murder on the Blade?, it endorsed the documentary’s point of view.  Acknowledging that the Broadcasting Standards Authority was at that time dealing with a complaint about the broadcast of that documentary, TVNZ noted that in its submission on that programme it had placed reliance on the guideline in the Television Code which acknowledged that broadcasters could screen authorial documentaries.  It commented:

We have defended your right to have your well-researched and strongly held opinions broadcast in Murder on the Blade? but that is not the same thing as TVNZ favouring or endorsing your view at the expense of the jury’s decision or other material from other sources.

[10] TVNZ pointed out Mr Watson had been found guilty and convicted of two murders and a Sunday story to which the court evidence was peripheral was not the appropriate place to present the complainant’s arguments.  TVNZ accepted that the complainant held a personal perspective on the convictions but added:

… you were not entitled to insist that a current affairs piece about Mr Watson’s marriage should choose your set of facts over those that convicted Scott Watson.

[11] TVNZ also denied that the complainant had been misinformed about the use to which the complainant’s programme was to be put.  It declined to uphold the complaint.

Referral to the Authority

[12] As he was dissatisfied with TVNZ’s response, Mr Hunter referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[13] Repeating five of the six points about the item which he said were inaccurate (para [2]), Mr Hunter said TVNZ had ignored the substance of his complaint and, instead, had confused matters of fact and opinion.  He reiterated his approach that it was totally acceptable to disagree with his views, but he objected to TVNZ’s description of those “incontrovertible facts” as just his views.

[14] The conclusions he presented in Murder on the Blade?, he wrote, were not just opinions.  He continued:

I expect TVNZ to accept that the facts I claimed to present in the film as facts are in fact facts, and that the opinions I derived from them are in fact opinions.

[15] The complainant asked TVNZ to declare whether or not it accepted the facts he had put forward in the programme as facts.  He contrasted those facts with those contained in the Sunday item which he described as “unsourced, unsubstantial fabrication, and opinions”.

[16] Mr Hunter put forward in more detail than had been included in the initial complaint to TVNZ, the reasons that he contended justified describing five of the six statements made in the programme (see para [2]) as inaccurate.  He advised that he withdrew his complaint about the presenter’s “a bit creepy” remark (number 4).

[17] Mr Hunter also advised that he now complained formally about the basis for the request from Sunday’s staff for access to his documentary.  He repeated that he had been told that the Sunday item was about the wedding and that images from his documentary would be used to “balance” the item.  He had not sought an assurance, as TVNZ said, that the film would only be used in a context that declared Watson innocent.  He had expected the item to be neutral, but it had contained “constant references” to Mr Watson’s violence and his convictions for the murders.

[18] In summary, Mr Hunter wrote:

What comes through in TVNZ’s overall response to my complaint, in my opinion, is its apparent position that because the Sunday programme hadn’t done the research that I have, and that because the item “… concentrated on the new Mrs Watson but (only) touched on aspects of the Scott Watson trial”, it was entitled to make up whatever “facts” it wished about Watson and his trial in order to emphasise its editorial line that Watson is a monster.  This is not current affairs journalism.  It’s no more than fabricated gutter gossip.

[19] He enclosed five appendices, including some transcripts from parts of the trial, in support of his complaint.

Broadcaster’s Response to the Authority

[20] Commenting on Mr Hunter’s statement regarding fact and opinion, TVNZ noted that his programme, as an authorial documentary, contained both fact and opinion.  Furthermore, TVNZ did not accept that it was required to accept as fact those matters that Mr Hunter asserted although they were disputed by others.  Scott Watson, it pointed out “was convicted, regardless of the ‘facts’” advanced by Mr Hunter.

[21] TVNZ again emphasised that Scott Watson’s marriage was the item’s focus and, in that context, his conviction for the double murder was accepted.  It also observed: 

TVNZ does have a view on whether Scott Watson was wrongly convicted.

[22] In later correspondence, TVNZ said the sentence should have read:

TVNZ does not have a view on whether Scott Watson was wrongly convicted.

[23] As for the specific alleged inaccuracies, TVNZ said it was in some difficulty as it was not yet aware of the Authority’s ruling on Standard 1 (good taste and decency) in regard to the complaint about Murder on the Blade?  Nevertheless, the statements made in the item were statements that had been given in evidence at the trial.  TVNZ understood that Scott Watson had 48 previous convictions, including some for theft and one for possession of an offensive weapon, and it also understood he had “head-butted” a police officer while in prison when some home-made weapons were found in his bedding.

[24] As Mr Hunter had not cited Standard 6 (fairness) in his original complaint, TVNZ contended that the Authority should disregard that aspect.

Complainant’s Final Comment

[25] Advising that he was unaware of any facts in Murder on the Blade? that had been disputed by others, Mr Hunter argued that it was now TVNZ’s responsibility to identify both the facts in dispute and by whom they were disputed.  Such information, he added, was necessary to enable the Authority to determine the complaint.

[26] Noting that TVNZ had not responded in detail to the alleged inaccuracies, the complainant described the broadcaster’s reply as one that used “false argument and deceit”, and that it had conceded that the claims in the item were based not on research but “solely on rumour”.

[27] Mr Hunter described TVNZ’s reply to point 2 as false – when the item had said Mr Watson was violent.  No evidence to this effect, he maintained, was put before the court.  Mr Watson’s criminal record, he added, included one conviction for violence – common assault when aged 17 for which he was fined $250.

[28] To substantiate his arguments, Mr Hunter forwarded a sealed copy of Scott Watson’s criminal record that, he said, was central to his complaint and that Scott Watson’s father agreed could be made available to the Authority under specific conditions.  That record, he stated, told the “not uncommon story” of a youth who went “non-violently off the rails in his adolescence”, but afterwards “essentially sorted himself out”.

[29] As for point 5 – that Mr Watson had been jailed for thefts and assault – Mr Hunter accepted that the statement was true in regard to theft. 

[30] As for point 6 – the reference to “reports” of “assaulting inmates” while in prison – Mr Hunter pointed out that TVNZ now referred to one incident only involving an assault on a police officer while in a police cell.  Moreover, newspaper accounts of this incident reported the judge’s comment that the charges “were at the lower end of the scale”.

[31] Mr Hunter then dealt with TVNZ’s suggestion to the Authority that it decline to deal with the Standard 6 (fairness) complaint as it was not part of the original complaint.  Noting that TVNZ had selected standard 5 (accuracy) as the only appropriate standard initially, Mr Hunter pointed out that he had referred to what he regarded as the Sunday’s team inappropriate behaviour in the original complaint.  Further, TVNZ had recognised the complaint and had had the opportunity to respond.

[32] Mr Hunter then dealt in detail with the point 3 – the hairs and scratch marks on the Blade and its repainting.  He expressed his anger as he felt that TVNZ’s response implied that he was “a liar”.

[33] Mr Hunter concluded:

Watson has now for seven years been wrongly defamed and accused by every organ of the press in the country, not one of them bothering to refer to the documentation in which the facts reside.  Instead each feeds off rumours published by the others in a constantly expanding spiral of “understandings”.  There seems to be a press view that if it’s evil and it refers to Scott Watson then “let’s publish it”.  The facts play no part in this process.

Authority's Determination

[34] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.  There are references in the correspondence to a complaint considered by the Authority about the broadcast of Mr Hunter’s documentary Murder on the Blade?.  In Decision No: 2004-127A [renumbered 2004-224], dated 15 October 2004, the Authority declined to uphold the complaint that this documentary was unbalanced, inaccurate, or unfair, or that it breached the requirement for good taste and decency.  That decision is not relevant to the present complaint.

Fairness

[35] There is a disagreement between TVNZ and Mr Hunter as to whether his initial letter amounted to a formal complaint that he had been treated unfairly by TVNZ with regard to the conditions under which it had borrowed his documentary.  When he referred his complaint to the Authority Mr Hunter contended that he had been dealt with unfairly as Sunday had not used his documentary, Murder on the Blade?, to balance the item.  Contrary to TVNZ’s undertaking, he wrote, the Sunday item contained “constant references” to Mr Watson’s guilt.

[36] The applicable standard, Standard 6 of the Television Code, requires broadcasters “to deal justly and fairly with any person or organisation taking part or referred to.”  As Mr Hunter neither took part in nor was referred to in the Sunday item, this standard does not apply to his complaint.  Accordingly, the Authority does not make a finding as to whether Mr Hunter’s initial complaint amounted to a formal complaint under Standard 6.  This aspect of the complaint is not upheld.

Accuracy

[37] When Mr Hunter referred the complaint to the Authority, he argued that it contained five statements which were inaccurate.  The Authority has examined each of the allegations.  In his referral, Mr Hunter dealt with the evidence fully and supporting documentation was attached to his referral.  This material has enabled the Authority to reach its decision on the alleged inaccuracies.

1. Presenter:  “The jury had heard about Scott Watson’s behaviour earlier in the night.”

   Witness 1    (archival footage in vision): “I recall I was sort of disturbed or disgusted by
                      what he was saying, being pretty sexually explicit..”

   Witness 2   (archival footage in vision): “He said at the time that “I’ll get into your pants
                      before the night’s over.”

   Witness 3:  (archival footage in vision): “He said to me ‘come down onto my boat and I’ll
                     do things to you you never imagined or dreamed of.’”

[38] The Authority is of the view that the statement from Witness 1 made at the trial was referring to a person who the witness believed was Scott Watson.  There is, however, dispute in the evidence as to whether Mr Watson made the statement reported by Witness 3.  Nevertheless, the Authority is unable to exclude the possibility that it was Mr Watson who made the statement and, as the matter is not capable of further verification, that aspect is not upheld.

[39] The Authority accepts that it was not Mr Watson who made the comment repeated by Witness 2.  As Mr Hunter explained, it was made by the witness under cross-examination in an attempt to explain the type of sexual remarks which were made, not just by Scott Watson, during the evening.  Accordingly, it upholds as a breach of the accuracy requirement in Standard 5 the complaint that the item suggested that the remark was made by Mr Watson.

2. Presenter:  “He has been described as aggressive, violent, and a smart arse...”

    Presenter:  “Evidence was heard at the trial that Scott could be violent”.

[40] The Authority notes that the first statement (above) did not refer to the trial and was made as a challenge to the interviewer in order to elicit a response, which it did.  For the statement to be inaccurate, the Authority would need to be satisfied that no one has ever described Mr Watson in the manner stated.  It is not satisfied of that and, accordingly, this part of the complaint is not upheld.

[41] With regard to the second statement (above), Mr Hunter was adamant that no such evidence was given at Scott Watson’s trial.  It is plain that Mr Hunter is very familiar with the trial transcript, having relied on it in the preparation of his documentary.  In response, TVNZ merely asserted its “understanding that jurors heard that while Watson’s criminal record was devoid of serious offences, Watson was jailed for repeated assaults and thefts”.  The Authority considers that, in the circumstances, TVNZ’s failure to identify specific evidence given at the trial that supports the broadcast statement is tantamount to an acknowledgement that the statement was inaccurate.  This aspect is upheld.

3. Presenter:   “Evidence of murder on the Blade included two hairs said to be Olivia’s,
                       and scratch marks on the hatch. The yacht, repainted in the following days,
                       had been scrubbed clean.”

[42] The Authority does not consider that this statement, which listed evidence that was presented at the trial, was inaccurate and in breach of the standard.  It recorded the evidence that was presented at the trial.  While the Authority acknowledges that there was an implication that the action could have been an effort to remove material which could suggest involvement in the disappearance of the two missing people, the comment in the item does not state the weight given to the evidence by the jury in reaching its verdict.  The Authority notes Mr Hunter’s point that the evidence disclosed that Mr Watson had been planning to paint his boat for some months, and his argument that the reference to “scrubbing” was false as the cleaning amounted to what was normal for any small boat.  However, those points do not detract from the essential fact that the statement did refer to evidence advanced at the trial.  Accordingly, the Authority considers that the statement was accurate.

4. Presenter:  “It’s a bit creepy isn’t it, being on the boat where Ben and Olivia were 
                      murdered”.  (This aspect was not referred to the Authority.)

5. Presenter:  “Before the trial he had been jailed for theft and assaults”.

[43] With the consent of Scott Watson’s family, Mr Hunter provided the Authority a sealed copy of Mr Watson’s criminal convictions as evidence that he had not been sentenced to imprisonment for violent offending.  In its correspondence, TVNZ referred to his convictions for offences involving violence and the total number of his previous convictions.  However, TVNZ did not provide evidence that Scott Watson had been imprisoned for any violent offences.

[44] Following correspondence with the complainant and TVNZ, agreement was reached to enable the Authority and relevant personnel within TVNZ to view the list of Scott Watson’s convictions.  The list confirmed the complaint that Scott Watson had not been jailed for assaults.

[45] Having viewed the list, TVNZ conceded that Scott Watson had not been jailed for assault and therefore the statement was incorrect.  Nevertheless, TVNZ added, Scott Watson had been convicted of assault and had been jailed for a number of dishonesty offences.  It wrote:

We submit that a viewer of ordinary sensibilities would draw from the programme the correct impression that Mr Watson had an extensive criminal record, and that is borne out by the “criminal and traffic history” supplied.

[46] The Authority notes that the point which TVNZ now makes was not made in the broadcast where, instead, it was said specifically that Scott Watson had been jailed for assaults.  Accordingly, this aspect of the complaint has also been upheld as a breach of accuracy.

6. Presenter:  “While he was in prison in the late nineties there were reports of his
                       assaulting inmates.”

[47] The Authority also upholds the complaint that this statement was inaccurate.  TVNZ referred to an incident in which Mr Watson, while in prison, had “head-butted” a police officer.  Mr Hunter then provided information – a newspaper article - that Mr Watson, while in prison, was charged with assaulting a police officer.  TVNZ did not, however, substantiate the statement that there were reports of “his assaulting inmates” and, accordingly, the Authority concludes, the statement was inaccurate.

Other matters

[48] The item’s focus was on the woman who married Scott Watson.  As the programme was not presented as an examination of the evidence put before the jury when Scott Watson was charged with the murders of Olivia Hope and Ben Smart, the Authority does not consider it necessary or relevant to respond to Mr Hunter’s comments about “facts” and “opinions”, other than the following:

• It agrees with Mr Hunter that the trial did not establish the validity of all the prosecution evidence advanced.  The very nature of a jury trial means that it is not known by anyone other than the jury members which evidence is relied on, and which is discounted, in reaching its verdict.  Accordingly, what is known about the guilty verdicts in Mr Watson’s murder trials is simply that the jury accepted that certain of the evidence presented to it proved that Mr Watson was guilty of both murders beyond reasonable doubt.
• The absence of a response by the judicial system to Murder on the Blade? provides no justification for an argument by Mr Hunter that his documentary was correct in asserting Mr Watson’s innocence.

[49] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and has taken into account all the circumstances of the complaint in reaching its determination to uphold the complaint and not to impose an order.  For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act

For the above reasons, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Sunday on 27 June 2004 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

[50] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989.  It does not intend to impose an order on this occasion.  It notes that the item was not a review of Mr Watson’s trial, but an interview with Mrs Watson, formerly Coral Branch, and two of her children after she had married Scott Watson.  While the Authority finds that some of the references to Mr Watson as a person and to his trial were inaccurate and breached the standard, and while this suggests that inadequate care was taken at the time the programme was compiled, it acknowledges that the extensive material available is open to interpretation.  It also notes the complexity of any possible correcting statement which it might order.  The Authority considers that the release of the decision upholding the complaint is sufficient to ensure a more careful approach by broadcasters when reporting on aspects of this case.

Signed for and on behalf of the Authority

Joanne Morris
Chair
18 February 2005

Appendix

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

1. Keith Hunter’s Complaint to Television New Zealand Ltd (plus attachments)
   – 11 July 2004
2. TVNZ’s Response to Keith Hunter – 2 August 2004
3. Mr Hunter’s Referral to the Broadcasting Standards Authority (plus attachments)
   – 22 August 2004
4. TVNZ’s Response to the Authority – 21 September 2004
5. Mr Hunter’s Final Comment – 5 October 2004
6. TVNZ’s Response to the Final Comment – 11 October 2004
7. Mr Hunter’s Further Comment – 15 October 2004
8. Further correspondence from Mr Hunter – 9 November 2004
9. Further correspondence from TVNZ – 9 February 2005
10. Further correspondence from Mr Hunter – 13 February 2005