BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
One News and One Late Edition – news items – Bailey Kurariki – referred to as a "killer" – inaccurate – unfair

Findings
Standard 5 – manslaughter definition – reference not inaccurate – no uphold

Standard 6 – Bailey Kurariki not dealt with unfairly – no uphold

This headnote does not form part of the decision.

Summary

[1] On One News at 6.00pm and on One Late Edition at 10.35pm on 16 September 2002, a report about the sentencing of the people convicted for the killing of Michael Choy was broadcast.

[2] Atihana Johns complained to Television New Zealand Ltd, the broadcaster, that the news reports relating to one of the people sentenced, Bailey Kurariki ("Bailey"), were inaccurate because they referred to Bailey as a "killer" and dealt with him unfairly.

[3] In response, TVNZ maintained that as Bailey was convicted of manslaughter the term "killer" was accurate, and that the emphasis on Bailey related to his age not his race which was not unfair in the context. It declined to uphold the complaints.

[4] Dissatisfied with TVNZ’s decision, Mr Johns referred the 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

[5] The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

The Programmes

[6] On One News at 6.00pm and on One Late Edition at 10.35pm on 16 September 2002, a report about the sentencing of the people convicted for the killing of Michael Choy was broadcast.

The Complaint

[7] Atihana Johns complained to Television New Zealand Ltd, the broadcaster, that the news reports relating to one of the people sentenced, Bailey Kurariki, were inaccurate because they referred to Bailey as a "killer" and dealt with him unfairly.

[8] Mr Johns maintained that the references to Bailey as a "killer" were inaccurate because he "did not swing the soft ball bat that killed Mr Choy." He added:

The fact that Kurariki was there, a state ward, and only 12 does not make him responsible for that act which he didn’t commit anyway. At the very most he can be described as an accessory to murder or a killing; but certainly not the main player.

[9] Mr Johns argued that the focus of the news item was on Bailey, although others were involved. He contended that this emphasis on Bailey was a "subjective projection of the case."

[10] The complainant wrote:

The description killer is an attempt by TV One to engender hatred in the public’s mind for this child, and to tap into the racist hardline prejudices that already exist in the public’s mind with regards to crime and criminals. By using the word killer TV One news is sensationalising in a gross and obscene way an incident involving a child who does not fit in terms of looks your killer stereotype; and trying to convince an enthralled public, (for the public good of course) that this cherubic child is in fact a killer. (His emphases)

[11] Mr Johns argued that the news items encouraged denigration of Bailey and his whanau. "It’s grossly unfair to treat a child in this way", he said. The complainant maintained that Bailey was not treated impartially because he was "from a seemingly dysfunctional whanau and therefore did not warrant partial treatment from the media."

[12] Mr Johns concluded:

Kurariki has a right to be treated according to his basic rights and to be treated fairly, not to be vilified publicly in the way he was, and not to be targeted as a killer in the way he was.

The Standards

[13] TVNZ assessed the complaints under Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. The Standards, and relevant Guidelines, read:

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.

Guideline

6g  Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

i) factual, or

ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or

iii) in the legitimate context of a dramatic, humorous or satirical work.

The Broadcaster’s Response to the Complainant

[14] TVNZ declined to uphold the complaints. It noted that the legal definition of manslaughter is:

the crime of killing a human being without malice aforethought or otherwise in circumstances not amounting to murder.

[15] As the Court found Bailey guilty of manslaughter, TVNZ maintained that the term "killer" was accurate. It declined to uphold a breach of Standard 5.

[16] In relation to Standard 6, TVNZ contended that the focus in the item on Bailey was on his age and not his race or his background, as alleged by the complainant. It wrote:

Being only 12 at the time the crime was committed he was the youngest person sentenced in an adult court for killing somebody. There was genuine public interest in how one so young should have found himself in that situation, and the items on One News reflected that public interest.

[17] TVNZ noted that there were no restrictions on reporting the sentencing of Bailey as it occurred in an adult Court. It also disagreed with Mr Johns that the items denigrated Bailey or his whanau. TVNZ referred to Guideline 6g which allows the broadcasting of factual material, in support of its submission. Given these factors, TVNZ concluded that Standard 6 had not been breached.

The Referral to the Broadcasting Standards Authority

[18] Mr Johns made two points when he referred the complaints to the Authority. First he rejected TVNZ’s reference to the definition of "manslaughter" and reiterated his objection to the use of the term "killer", maintaining that it did not accurately reflect the involvement of Bailey. Rather, he submitted that the media’s focus should have been on the person directly responsible for Mr Choy’s death.

[19] Second, he contended that TVNZ acted unfairly in its use of the word "killer", as it did not use the term in the reporting of other similar crimes. He also queried how the use of the word "killer" was in the public interest, and argued that it was used only for the "sake of sensationalism".

The Broadcaster’s Response to the Authority

[20] TVNZ enclosed newspaper clippings, which it noted interpreted and reported Bailey’s sentence in the same way as it had. It submitted that the term "killer" accurately reflected the Court’s verdict.

The Complainant’s Final Comment

[21] Mr Johns contended that the newspaper articles referred to by TVNZ simply reinforced the basis of his complaint. As the news items complained about were broadcast by TVNZ before the newspaper articles appeared, Mr Johns suggested that, TVNZ may have "set the disgusting bench mark for those that followed."

[22] Mr Johns also enclosed newspaper articles, which he stated highlighted the basis of his complaint and the impact of the media’s focus on Bailey. He reiterated that Bailey was not a "killer".

The Authority’s Determination

[23] Mr Johns complained that news reports relating to Bailey Kurariki were inaccurate because they referred to him as a "killer" when he was not the person who actually killed Mr Choy. The Authority notes that the definition of "culpable homicide" in the Crimes Act 1961 refers to the "killing" of a person. In the Authority’s view, as Bailey was convicted of manslaughter (culpable homicide), the references to him as a "killer" on the news items were therefore not inaccurate. Accordingly, the Authority declines to uphold this aspect of the complaint.

[24] The complainant also maintained that Bailey was dealt with unfairly because he was referred to as a "killer", and that he was the focus of the news items although there were others involved. Further, he contended that the news reports encouraged denigration of Bailey and his whanau. The Authority recognises that the unusual circumstances in which Bailey found himself was inherently sensational, and consequently, provided television and other media with dramatic viewing material. In terms of the newsworthiness of Bailey’s age it was inevitable that the broadcaster, and other news media, focussed on him. The Authority concludes that the reference to Bailey as a "killer" was not unfair and nor was he dealt with in a manner that contravened the fairness standard.

[25] The Authority also considers that the item did not encourage denigration of Bailey or his whanau. In its view, the interview with Bailey’s brother and sister attempted to facilitate viewer understanding of the family’s predicament rather than foster any concept of unfairness or denigration. In the Authority’s opinion, the interview reflected sadness, grief and self-questioning from the family as to what they could have done to help Bailey. Accordingly, the Authority concludes that the news items did not breach Standard 6.

[26] The Authority records that it acknowledges the compassionate concerns of the complainant, but notes the unique circumstances of Bailey as a child being sentenced in an adult court for manslaughter and the attendant publicity that this brought to the case.

[27] The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

For the above reasons, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
17 December 2002

Appendix

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

1. Atihana Johns’ Complaints to Television New Zealand Ltd – 17 September and 5 October 2002
2. TVNZ’s Response to the Formal Complaints – 22 October 2002
3. Mr Johns’ Referral to the Broadcasting Standards Authority – 25 October 2002
4. TVNZ’s Response to the Authority – 7 November 2002 (plus attachments)
5. Mr Johns’ Final Comment – 12 November 2002 (plus attachments)