BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
60 Minutes – “Troubled Waters” – boating accident involving fishing expert Wayne Wills aka “Bill Hohepa” – allegedly unbalanced, inaccurate and unfair as item suggested that Maritime Safety Authority had relentlessly and unjustifiably pursued, and continued to pursue, Mr Wills

Findings
Standard 4 (balance) – reasonable efforts made to present significant points of view – not upheld

Standard 5 (accuracy) – item contained one inaccuracy – upheld

Standard 6 (fairness) – Mr Wills’ view was not unfair to the MSA – not upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1] The consequences of a boating incident in 1996 involving the fishing expert Wayne Wills, better known and referred to in the programme as “Bill Hohepa”, in which one person drowned, was dealt with in an item broadcast on TV3 in 60 Minutes on 8 December 2003. The item explained that Mr Hohepa had since faced a number of inquiries, including a trial, and reported that he felt that he had been relentlessly pursued by the Maritime Safety Authority because he had a high media profile.

Complaint

[2] Russell Kilvington, Director of the Maritime Safety Authority (MSA), complained to TV3 Network Services Ltd, the broadcaster, that the item “unfairly left the impression that the MSA relentlessly and unjustifiably pursued Mr Wills because of his profile”. As a consequence, he wrote, the item was unbalanced, inaccurate and unfair.

[3] In regard to balance, Mr Kilvington said that the programme omitted the part of his statement to 60 Minutes in which he had advised why he could not comment on some specific factual issues. He said he was restrained by an order by a District Court Judge which arrived just before he was due to comment and which prohibited him from discussing the findings of the second Coroner’s inquest into the incident. He complained that in not noting that fact, TV3 had left the impression he had simply chosen not to respond.

[4] As for accuracy, Mr Kilvington described as “completely inaccurate” the comment in the item that the refusal by the MSA to hand over certain documents was the reason for the delay of the first Coroner’s inquest. He pointed out that there had been an 18-month delay between Mr Wills’ trial and the inquest, and he was unable to explain the reason for it. No requests to the MSA for information were outstanding during that period.

[5] Mr Kilvington also described the item as inaccurate when it implied that nine EPIRB (emergency position indicating radio beacon) positions were received before the first survivors reached the shore, and that none of these positions was passed on to the Police or Search and Rescue.

[6] Turning to fairness, Mr Kilvington argued that the item was unfair to the MSA when it suggested that the MSA initiated a complaint against Mr Wills in respect of a life jacket allegation as part of its “pursuit” of Mr Wills.

[7] Mr Kilvington acknowledged that the MSA prosecuted Mr Wills, but its work finished with his trial. The delays associated with the second Coroner’s inquest, he explained, were not attributable to the MSA and he requested the broadcast of a clarifying statement. He concluded:

The position remains that, due to a direction of the Judge, the provisional findings of the Coroner cannot be released publicly at this stage – they are, however, in part relevant to the matters dealt with in the item. Broadcasting the item prior to the public release of the Coroner’s finding was in itself unfair and likely to give rise to an unbalanced and partial coverage of the matters at issue.

Standards

[8] TV3 assessed the complaint under the standards nominated by the MSA. The relevant provisions in the Free-to-Air Television Code of Broadcasting Practice read:

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

[9] Dealing first with the issue of balance, TV3 accepted that the item, relating to the delays in the rescue of some fishermen, dealt with an issue of public importance. It recorded what it described as the “generous” opportunities which had been offered to the MSA to present its point of view. The MSA, it wrote, was aware of the allegations which Mr Wills intended to make. As the programme did not deal with the Coroner’s preliminary findings, TV3 said it was “unconvinced” by the MSA’s reasons for not participating. Declining to uphold the balance aspect, TV3 said:

Not only were reasonable opportunities extended for MSA to participate, the [Standards] Committee finds that the producer made reasonable efforts to present the MSA point of view by extracting material from the inquest record and by including in the programme the scant material MSA had provided by way of a statement.

[10] The MSA had complained about two aspects that it considered were inaccurate. As for the first, the delay in resolving the matter, TV3 advised that the first Coroner reported that the MSA had refused to provide information until the trial had been completed. The subsequent 18 month delay, TV3 added, had arisen as the Coroner and the Police had to start their enquiries again. Moreover, the inquest had been adjourned on at least two further occasions as an MSA witness was unavailable. TV3 considered that there was an adequate basis for the statement in the programme and declined to uphold that matter.

[11] As for the inaccuracy complaint in regard to the EPIRB signals, TV3 questioned what was the evidence for MSA’s position regarding the EPIRBs which the MSA said was “clearly established”. Quoting the item’s script, TV3 did not accept that it supported the MSA’s inferences. It added:

The main allegation in the programme is that MSA failed to pass on satellite information in time to effect the rescue of Mr Philpott [the man who drowned]. That is not disputed.

[12] Turning to the complaint that the item was unfair in that it suggested that Mr Wills was investigated by the MSA over whether Mr Philpott was wearing a buoyancy vest rather than a life jacket, TV3 said that the issue was referred by the MSA to the police for investigation. Mr Wills, it said, had characterised the MSA’s actions against him as “relentless” which was a point of view he was entitled to. It was a matter, TV3 noted, that the MSA could have dealt with if it had decided to comment.

[13] TV3 listed some others who knew of the events who also considered that the MSA had been pursuing Mr Wills.

[14] Declining to uphold the complaint, TV3 advised that it had weighed the complaint against the right to “free speech” contained in the New Zealand Bill of Rights Act 1990.

Referral to the Authority

[15] The MSA outlined the following background:

The background to the programme is complicated. It involves a boating incident that resulted in a fatality, an unsuccessful prosecution of the skipper of the boat (Mr Wills), a Coroner’s inquest, a High Court hearing at which a new inquest was ordered as a result of the deficiencies of the first inquest, and a second coroner’s inquest before a District Court Judge.

[16] In regard to his complaint that the item did not state that he could not comment on specific factual matters which were the subject of the second Coroner’s inquest, Mr Kilvington said that while he had agreed to an interview initially, he had later changed his mind. He had changed his mind when it became apparent that he would have been unable to respond adequately without referring to the Coroner’s preliminary findings which he had just received, and which had not been publicly released. It was “disingenuous” he observed, for TV3 to suggest that 60 Minutes’ questions of him would not refer to the Coroner’s findings.

[17] Mr Kilvington also expressed concern that TV3 had described his written response as “scant”, given the Coroner’s directions on what he was able to say. Mr Kilvington advised that of the six questions asked only two did not involve disclosing issues that were dealt with in the second Coroner’s report. Mr Kilvington advised that the two points used from his statement in the item were that the MSA rejected Mr Wills’ allegation of “relentless pursuit” and second that the focus for the MSA’s actions was maritime safety regardless of Mr Wills’ celebrity status.

[18] Mr Kilvington said that the two inaccuracy complaints were established by the evidence presented at the second Coroner’s inquest. While the MSA accepted the criticism made by the High Court judge about its initial withholding of the material, the reasons advanced by TV3 for the further 18-month delay were “simply nonsense”.

[19] Concern was expressed that TV3 accepted evidence about the EPIRB from sources other than the evidence given at the second Coroner’s inquiry. The evidence at the Inquiry had disclosed that the MSA relayed the satellite fixes to Far North Radio as soon as that information had been received from the National Rescue Co-ordination Centre (NRCC). Mr Kilvington wrote:

Therefore the facts are that the satellite information was passed on, but there was no co-ordinated search and rescue effort involving local Coastguard or the Police until the first survivors found their way to shore. Once that search effort was underway its co-ordination was the responsibility of the Police (Class II) or NRCC (Class III), not MSA. To suggest that MSA was solely responsible for failing to pass on the satellite information is both inaccurate and grossly unfair to MSA.

[20] As for the “relentless” pursuit comment, Mr Kilvington accepted that individuals were entitled to their points of view, but it was unfair for the item to suggest that the MSA initiated the investigation into the life jacket issue.

Broadcaster’s Response to the Authority

[21] TV3 maintained that every opportunity had been given to Mr Kilvington to be interviewed and it was his decision whether or not to do so. His reasons not to be interviewed, it contended, were not really relevant. Contrary to Mr Kilvington’s claim, TV3 added, the fact that reasons were given during the item for Mrs Phillpott [the drowned man’s widow] declining to be interviewed should not be contrasted with the omission from the item of any explanation of Mr Kilvington’s declining to be interviewed. TV3 did not receive a copy of the email sent to Mr Kilvington by the Ministry of Justice regarding the release of the second Coroner’s report which he had said made his appearance on the programme impossible. TV3, it said, was advised only that the release was imminent. It added:

The [Standards] Committee was not being disingenuous by suggesting the interview could go ahead despite the requirement for confidentiality. Anything with an existence independent of the coroner’s report can be discussed without any risk of contempt or breach of confidentiality.

[22] As for the issue of delay, TV3 reported that Mr Wills’ counsel confirmed the earlier advice that the long periods of delay were substantially the MSA’s responsibility. TV3 insisted that the comment in the transcript was “acceptable shorthand” for the various delays which had occurred.

[23] With regard to the comment in the item regarding passing on the satellite information, TV3 quoted at length from the script and wrote:

The MSA is not mentioned. As we said in our decision the major point is that the signals were not communicated to relevant agencies to enable a rescue effort to be instigated. MSA website claims that the Authority has particular responsibility for co-ordinating maritime rescue:

Maritime Search and Rescue in New Zealand?

All search and rescue – land, sea and air – is conducted by the New Zealand Search and Rescue Organisation, of which Maritime Safety Authority is a part. The MSA has particular responsibility for co-ordinating maritime SARs.

[24] TV3 argued that the item did not suggest that the MSA instigated the life jacket issue. The item reported Mr Wills’ comment to which the MSA could have responded.

[25] In conclusion, TV3 contended that the item:

• Was prepared in order to include the MSA viewpoint and was presented in such a way that viewers would clearly understand that there was an issue about responsibility for the accident as between Hohepa [Mr Wills] and MSA and an issue about the efficiency of the rescue operation and its impact on the outcome of the accident;
• Had a proper basis for factual reports and distinguished those reports from comment or analysis; and
• Was fair to MSA both in what was said in the programme and in the opportunities afforded MSA to participate in the preparation of the programme.

[26] The events covered in the item were “quite literally a matter of life and death” for the individuals involved. The item gave them an opportunity to “tell their story”, and TV3 had given the MSA an opportunity to respond. It argued:

It is TV3’s submission that the Authority should be slow, in these circumstances, to deny the individuals involved the right to “have their say” simply because the MSA has chosen not to. The rights of Mr Hohepa to state his view and the 60 Minutes programme to investigate and report on the issue cannot and ought not to be forestalled by the refusal of one party to participate.

[27] In addition, TV3 explained that its task was not to determine the rights and wrongs of the MSA’s response to the accident, but to consider the applicability of broadcasting standards.

Complainant’s Final Comment

[28] The MSA acknowledged that the incident had impacted significantly on the lives of the people involved. After the initial investigation, it recalled, it had considered that Mr Wills had failed to comply with the basic rules of boating safety expected of a commercial operator. A prosecution was brought and at the trial, it continued, the jury had agreed with the defence argument that it was the failure of the maritime rescue services to instigate a search which was responsible for Mr Philpott’s death. That approach had also been accepted at the first Coroner’s inquest.

[29] The MSA considered that the Coroner had not examined Mr Wills’ behaviour critically, and it was successful in its application to the High Court for a second inquest. The second inquest was conducted by Judge MacLean in September and November 2003.

[30] Judge MacLean issued a draft decision which was confidential to the parties. The draft, the MSA said, dealt with the same issues examined in the 60 Minutes item. Accordingly, Mr Kilvington wrote, he was unable to comment on the issues raised in the item and, therefore, it was unfair for TV3 to argue that he had been given an opportunity to contribute, but had chosen not to participate. The confidential draft findings, he pointed out, were released on 5 December 2003, some three days before the broadcast. The interview with Mr Kilvington was in fact scheduled to take place on 6 December. Mr Kilvington wrote:

Given that the findings had not been publicly released I was effectively prevented from making any substantive comment or response. It would have been most improper for me, as Chief Executive of a Crown entity, to comment on matters that were still being considered by a Coroner before he finalised and publicly released his verdict, particularly in circumstances where I knew what the Coroner was proposing to say in his verdict and was subject to a confidentiality order in relation to the contents of that draft verdict.

[31] Mr Kilvington stated that he had wanted to participate but could not do so in the particular circumstances. He explained:

I was in an unenviable position. I had to choose between participating in the programme to present the MSA’s position and risk being censured by the Judge for contempt and/or breaching the confidential nature of the findings of the draft verdict, or choose not to participate and have the programme proceed in an unbalanced way without any explanation as to why I chose to simply issue a statement and not appear in person to answer all questions put to the MSA.

Mr Wills is, of course, entitled to his opinion in relation to the actions of the MSA. However, a responsible broadcaster must recognise that there are always two sides to every story. Broadcasting the substance of both sides to every story is something every responsible broadcaster must do to ensure balance and fairness. To accept one opinion over and above that of another when the other is constrained from fully presenting its opinion or comments on the matter is neither fair nor balanced.

[32] Turning to the issue of balance, Mr Kilvington contended that the item was unfair and unbalanced when it did not explain why he had declined to comment.

[33] Mr Kilvington repeated his complaint when the item said that the MSA was responsible for the long delays involved. While it accepted some responsibility, it contended that the actions of Mr Wills’ counsel were also responsible for some of the delays.

[34] Referring to the EPIRB signals, Mr Kilvington accepted that the programme had not said that the MSA was responsible for failing to pass on satellite information to local search and rescue. However, he said, the item was incorrect and that argument had been accepted by Judge MacLean. He wrote:

The correct position is that there were another seven signals, five of which were close to the position of Mr Wills and [his boat] Hunky Dory. The initial signals were acted on. Far North Radio made inquiries of vessels known to be in the area as soon as it became aware of the active beacon. Phone calls were made by search and rescue in Wellington to Far North Radio. Far North Radio was utilised by the local Police constable to co-ordinate the search effort.

The suggestions that “a further nine signals...were never acted on”, and “…without a phone call from search and rescue in Wellington conveying the position of the EPIRB…” are inaccurate when compared with the evidence that was heard by Judge MacLean.

All search and rescue agencies, including MSA, have reason to feel aggrieved at these inaccuracies.

[35] Mr Kilvington also accepted that the item did not say that the MSA instigated the complaint about the life jacket. However, in summary, he wrote:

TV3 chose to run a programme about issues it knew I wanted to comment on in circumstances where I was constrained by a confidentiality ruling by the Coroner. By broadcasting that programme with the editorial comment contained within it TV3 breached the standards of fairness and balance. Its failure to examine the evidence in the detail required by this complex case has also lead to inaccuracy of reporting, which has reflected adversely on MSA and other safety agencies.

Broadcaster’s Response to Complainant's Final Comment

[36] TV3 stated that there were two aspects of Mr Kilvington’s final comment which required a response. First, in relation to the release of the Coroner’s report, TV3 maintained that Mr Kilvington “could still have commented on the marine accident and the MSA’s response and actions as a result of the accident”, without disclosing the contents of the Coroner’s report.

[37] The second aspect concerned the EPIRB signals. TV3 disagreed with Mr Kilvington’s submission that it accepted that the information in the item relating to the signals was incorrect. TV3 maintained that the item was correct when it stated that the “search was initiated because the survivors made it to shore and alerted the Authorities”. TV3 accepted that there were issues about “who did what in relation to the various signals”, but it contended that those issues could not be determined without assessing all the relevant evidence.

Authority's Determination

[38] The members of the Authority have viewed a tape and read a transcript of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 4 (balance)

[39] Mr Kilvington complained that the item was unbalanced as it failed to explain why the MSA had not appeared on the programme and discussed the issues raised in the programme.

[40] Standard 4 requires broadcasters to maintain 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.

[41] In the Authority’s view, the item dealt with a controversial issue of public importance to which the standard applies. The item examined the concerns of a commercial boat operator who was involved in a boating accident seven years ago, who felt he was still subject to the attention of the MSA. The programme also raised issues about the efficiency of New Zealand’s maritime search and rescue process.

[42] The issue for the Authority is whether reasonable opportunities were given, or reasonable efforts were made, to present significant points of view in the programme by the MSA or others. Overall the Authority considers a balance of perspectives was aired during the programme. The Authority notes that the views of Mr Wills, those who had helped with the rescue effort and others involved with the investigation and prosecution of Mr Wills were all canvassed during the programme. The Authority considers that the inclusion of inquest transcript evidence from an MSA official as well as the substantive part of the MSA’s statement satisfies the requirement for reasonable efforts to be made to present the MSA’s point of view during the programme.

[43] The MSA argued that it was constrained by the Coroner’s report from participating in the item, and that it had advised TV3 who had failed to disclose this on the programme. The Authority finds that the item was not unbalanced because it did not state why the MSA had not participated. The focus of the item would not have changed had the programme stated the reasons why the MSA could not appear. Accordingly, the Authority does not uphold the complaint that the programme breached Standard 4.

[44] While the Authority has some sympathy for the position in which Mr Kilvington found himself, it nevertheless considers that the programme’s failure to record his reason for not appearing did not substantially alter the focus of the item.

Standard 5 (accuracy)

[45] Standard 5 requires broadcasters, in the preparation and presentation of news and current affairs programmes, to be truthful and accurate on points of fact. Mr Kilvington alleged two inaccuracies constituted a breach of Standard 5.

[46] The first relates to the lengthy delay before commencement of the Coroner’s inquest. The item stated that:

Four years and four months after the accident, a Coroner’s inquest into Keith Philpott’s death finally began. The reason for such a long delay – the Maritime Safety Authority had refused to release search and rescue information to the Coroner until after it had prosecuted Bill Hohepa.

[47] The Authority concludes that the reporter’s statement was inaccurate as it implied that the cause of the delay was solely attributable to the MSA. The Authority notes that there were a number of other factors that explained the lengthy period between the date of the incident and the commencement of the first Coroner’s inquest, including court process. Accordingly, the Authority concludes that the presenter’s comment breached Standard 5 of the Television Code.

[48] The second factual inaccuracy raised by the complainant concerns the EPIRB signals. The item stated that a search was launched in response to the first signal but that this was abandoned when it was assumed that the signal had come from a trawler in nearby Matai Bay. It then went on to say that a further nine signals were picked up at Search and Rescue headquarters in Wellington, that five of them “pinpointed” the men’s position in Doubtless Bay, “yet this information was never acted upon”.

[49] The Authority considers that it does not have sufficient information to determine the accuracy of this statement. The Authority notes that issues concerning the number of signals, who received them, and what, if any, action was taken and by whom were matters of evidence for determination by the Coroner. The MSA, in support of its complaint, presented information established in evidence at the second Coroner’s inquest. However, the Authority notes that the second Coroner’s report was not available to TV3 at the time of broadcast, as the report had not been publicly released. Accordingly, the Authority declines to determine this aspect of the complaint.

Standard 6 (fairness)

[50] Mr Kilvington argued that the MSA was dealt with unfairly because it was portrayed as “relentlessly pursuing” Mr Wills, because of his profile. The item said that the “MSA was looking at another way to charge” Mr Wills, and referred to the investigation of the life jacket issue.

[51] Standard 6 requires the broadcaster to deal justly and fairly with the MSA as an organisation referred to in the programme.

[52] In the Authority’s view, the MSA was dealt with fairly. The Authority accepts that the focus of the item was Mr Wills’ perspective that he was being relentlessly pursued by the MSA. It was Mr Wills’ view that he had been unjustifiably pursued by the MSA since the accident, which was supported by the circumstances detailed in the programme. Mr Wills had been through the process of being investigated by the police and not charged, either in relation to the accident or the life jacket issue, then being prosecuted by the MSA and found not guilty, and then had been through two Coroner’s inquests, the second of which was the result of MSA’s actions. Accordingly the Authority finds that the item did not breach Standard 6.

[53] 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 taken into account all the circumstances of the complaint in reaching this determination. 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 one aspect of a 60 Minutes item broadcast by TV3 Network Services Ltd on 8 December 2003 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

The Authority declines to uphold any other aspects of the complaint.

[54] Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Act. Having considered all the circumstances of the complaint and taking into account the minor nature of the breach, the Authority concludes an order is not appropriate.

Signed for and on behalf of the Authority

Tapu Misa
Member
30 September 2004

Appendix

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

1. New Zealand Maritime Safety Authority’s Formal Complaint to TV3 Network Services Ltd
   – 23 December 2003
2. TV3’s Response to the Maritime Safety Authority – 13 February 2004
3. The Maritime Safety Authority’s Referral to the Broadcasting Standards Authority – 15 March 2004
4. TV3’s Response to the Authority – 26 May 2004
5. The Maritime Safety Authority’s Final Comment – 18 June 2004
6. TV3’s Response to the Final Comment – 2 July 2004