BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Newstalk ZB – host Danny Watson – results of trial of Jules Mikus for the murder of Teresa Cormack referred to and discussion about justice, retribution and community responsibility – encouraged vigilante justice

Findings
Principle 7 – not applicable – no uphold

Principle 2 – some of the host’s populist comments came close to breach – although overall support for judicial processes – no uphold

This headnote does not form part of the decision

Summary

[1] The conviction of Jules Mikus for the murder of Teresa Cormack was referred to on Newstalk ZB between noon and 3pm in the talkback session broadcast on 9 October 2002 hosted by Danny Watson. Concern at the time-lapse between the murder and conviction was expressed. Examples of extra-judicial justice were given by callers and the host at times suggested that instant justice could be more effective in reforming offenders than the justice system.

[2] Dr Patrick Mulhern complained to The Radio Network Ltd (TRN), the broadcaster, that the host encouraged callers to take the law into their own hands, including the use of physical punishment.

[3] In response, TRN stated that the session dealt with issues of justice and maintained that the host’s approach equated with that of an "old-style policeman" who sorted out minor problems to avoid major problems. It declined to uphold the complaint.

[4] Dissatisfied with TRN’s response, Dr Mulhern referred his complaint to the Broadcasting Standards Authority under s8(1) (a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint.

Decision

[5] The members have read a transcript of the full programme complained about, have listened to an audio tape of part of the session, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] Newstalk ZB is a talkback radio station and the recent guilty verdict in the trial of Jules Mikus for the murder of Teresa Cormack 15 years earlier was a matter discussed in the session broadcast from noon to 3.00pm on 9 October 2002. The host was Danny Watson.

[7] The host encouraged callers to talk about their experiences with criminal justice, including the administration of punishment for criminal activities which did not use the criminal justice processes, and at times suggested that a severe punishment imposed speedily was possibly more likely to stop a criminal career than the official justice system.

The Complaint

[8] Dr Patrick Mulhern complained that the host encouraged and applauded callers who had taken law into their own hands, including the use of physical assault.

The Standards

[9] TRN assessed the complaint under Principle 7 of the Radio Code of Broadcasting Practice. It reads:

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

The Broadcaster’s Response to the Complainant

[10] TRN stated that the session had dealt with the topics of justice, retribution and community responsibility. It acknowledged that some callers spoke of occasions when they had taken matters into their own hands. TRN said that the host had warned them of the consequences of doing so. The session, it wrote, "was not a one-sided discussion on the use of vigilante justice". Rather, it added, the host’s approach was that of an "old-style policeman" who sorted out a minor problem before it became a major problem.

[11] Noting that the programme reflected the anger held by the callers against Jules Mikus, TRN argued that, in context, the session was "more cathartic than provocative". It declined to uphold the complaint.

The Referral to the Broadcasting Standards Authority

[12] Dr Mulhern considered a reference to "Maori justice" in TRN’s reply to be racist, and he objected to TRN’s contention that taking the law into one’s own hands was "laudable in some circumstances".

The Broadcaster’s Response to the Authority

[13] TRN observed that the programme’s host, Danny Watson, referred to himself as a Maori and had related situations about which he was personally aware.

The Authority’s Determination

[14] The complainant considered that the host’s comments during the three hour talkback session on 9 October 2002 about crime and punishment encouraged callers to take the law into their own hands, and applauded those who had done so. The broadcaster assessed the complaint under Principle 7 of the Radio Code under which broadcasters are required to be socially responsible.

[15] In view of the complainant’s concern about extra-legal remedies, the Authority is of the view that Principle 2 is more relevant. It reads:

Principle 2

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the maintenance of law and order.

[16] To ensure that it was conversant with the general tenor of and the precise comments made by the host, the Authority obtained a transcript of the full programme. The Authority, however, has not assessed the talkback programme on a line-by-line basis. Rather it has considered whether the host’s comments during the session amounted to a breach of Principle 2, in that they encouraged behaviour which was inconsistent with the maintenance of law and order.

[17] The discussion complained about followed the conviction of Jules Mikus for a number of crimes, including the murder of Teresa Cormack some 15 years previously. As the host and the callers observed during the broadcast, it was an horrendous crime which had remained unsolved for many years.

[18] The Authority acknowledges that the crime caused widespread revulsion in the community, and the host, in the session complained about, expressed populist views. However, it was not clear at times during the session in which spontaneous emotional responses were expressed, whether the host and the callers were discussing, and advocating, justice, extra-judicial justice or retribution.

[19] At times the host encouraged "early intervention" and suggested that "swift justice", in the form of the archetypal local constable, was an effective method of discouraging criminal behaviour in the young. When callers spoke of corporal remedies for adult offenders administered by the families of victims, the host sometimes gave the impression that he agreed with that response. Nevertheless, later, he would advocate again "early intervention", rather than extra-judicial punishment.

[20] While some of the host’s individual comments came close to breaching Principle 2, the Authority concludes that, overall, the populist views he expressed did not amount to a breach. It declines to uphold the complaint.

[21] 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 which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
30 January 2003

Appendix

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

1. Dr Patrick Mulhern’s Complaint to The Radio Network Ltd – 9 October 2002
2. TRN’s Response to the Formal Complaint – 17 October 2002
3. Dr Mulhern’s Referral to the Broadcasting Standards Authority – 24 October 2002
4. TRN’s Response to the Authority – 7 November 2002