BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Investigator: Did Mark Lundy Kill His Wife and Daughter? – documentary maker Bryan Bruce gave his perspective on whether Mark Lundy murdered his wife and daughter – presenter referred to evidence given by the complainant in the trial relating to the estimated time of death – allegedly in breach of controversial issues, accuracy and fairness standards

Findings
Standard 4 (controversial issues) – Mr Bruce’s analysis of the Lundy case did not amount to a discussion of a controversial issue – not necessary to present viewpoints on the reliability of determining time of death using stomach contents – not upheld

Standard 5 (accuracy) – programme was inherently presented as opinion and analysis – Mr Bruce was clearly advocating for the conclusion he had reached and was not making statements of fact – not upheld

Standard 6 (fairness) – programme did not comment on Dr Pang’s competence – expert witnesses should expect that others will disagree with their views – not necessary to offer Dr Pang an opportunity to comment – Dr Pang treated fairly – not upheld

This headnote does not form part of the decision. 

Broadcast

[1]  A documentary, titled The Investigator: Did Mark Lundy Kill His Wife and Daughter?, was broadcast on TV One at 8.30pm on Monday 29 November 2010. The documentary maker, Bryan Bruce, gave his perspective on whether or not Mark Lundy was guilty of the murders of his wife Christine and his daughter Amber, for which he had been convicted. Mr Bruce introduced the programme saying:

In January of this year, North and South raised serious questions about the murder conviction of Mark Lundy. New evidence and expert opinion, the magazine claimed, suggested Lundy may not have murdered his wife Christine and daughter Amber, after all. If true, these claims would amount to a serious miscarriage of justice. So I’ve obtained all the court records from his trial and his appeal so I can do my own investigation.

[2]  Mr Bruce explained that the prosecution’s case rested on the victims’ time of death being at 7pm. He said:

This brings us to this man, Dr James Pang the Crown pathologist. He examined Christine and Amber in the morgue. This is what he said he found. He describes their stomachs as full. He said there was no free fluid in either of the abdomens and that each of the stomachs contained a large meal, consisting, he thought, of potato chips and probably fish, which showed no obvious signs of digestion and no obvious smell of gastric juices.

[3]  Mr Bruce showed viewers a picture taken by Dr Pang which was not labelled, showing a small piece of fish and some chips. Mr Bruce went on:

I’m going to come back to this report a bit later in the programme because it’s crucial to the Crown case. For the moment I just want to read you what Dr Pang actually said at trial, when he was asked this question by prosecutor [name].

“What do you say was the time of death by reference to the consumption of the meal?” Dr Pang replies, “Taking into consideration all the factors, I would estimate [it] to be one hour,” and then Justice Ellis asks, “One hour after ingestion?” and Dr Pang says, “That’s right, your Honour.” So that would make it, on the Crown’s reckoning, about 7pm for the time of the murder.

[4]  Later in the programme, Mr Bruce said:

The key problem it seems to me in the Lundy case, is the 7pm time of death. ...You’ll recall the evidence of Dr Pang, given in court, that Christine and Amber Lundy died within one hour of eating their last meal. So I contacted several of the world’s leading experts in digestion and emailed them about what Dr Pang had stated in his testimony, and the first was Dr Nicholas Diamant. He’s a senior researcher at the Toronto hospital, and he was formerly the Professor of Medicine at Toronto university. He was consulted by the Crown in Canada over the Stephen Truscott case. Stephen was just 14 when he was convicted of murdering his class mate Lynn Harper, that was in 1959. The conviction was based on the Crown pathologist narrowing the time of death to within two hours of the victim eating her last meal, based on the stomach contents. Sound familiar?

Now Dr Diamant referred me to his evidence that he gave in that case, and here it is. He states, “Virtually all of the literature in the forensic medicine area describes any attempt to define the exact time of death, or even time of death within a time limit to a period such as one or two hours, is unreliable.”

In other words, Dr Pang’s opinion that he could narrow the time of death of Christine and Amber Lundy to within one hour of eating their last meal, flies in the face of internationally accepted opinion in this area. There’s just too many factors involved.

One of those factors was outlined to me by Dr Michael Horowitz. He’s the Professor of Medicine at the Royal Adelaide Hospital, and he’s the author of this paper, “The Stomach as a Forensic Clock”. It’s an ironic title because in fact he and his co-author, Professor David Pounder conclude, and I quote, “For forensic purposes the stomach is a very poor timekeeper.”

So again, two eminent opinions saying that Dr Pang is at odds with accepted international opinion.

[5]  Mr Bruce went on to say that Dr Horowitz had been keen to point out to him the importance of liquids in relation to digestion. He said, “Apparently, if you drink coke or fruit juice with your takeaways it takes longer to digest your meal. ‘Solids,’ he says, ‘only start to empty from the stomach after 80 percent of the liquid has emptied.’” Mr Bruce noted that an empty 2-litre bottle of Pepsi was found in the Lundys’ kitchen.

[6]  Mr Bruce then phoned Dr Bernard Knight, co-author of a respected textbook, “Estimation of the Time Since Death in the Early Post-Mortem Period”. They had the following exchange:

Bruce:    You’ve read Dr Pang’s post-mortem report. Can I begin by asking you, what do you
             make of his claim that he was able to place the time of death of both Christine and
             Amber Lundy as being within one hour of eating their McDonalds meal, based
             on the freshness of the stomach contents and no gastric smell?

Knight:   Well that’s just not true. I mean, stomach contents are notoriously inaccurate.
             There have been a number of cases where there have been miscarriages of justice
             because people have depended on this. It’s just not on. And especially I think if he
             claimed that the smell of the stomach contents was relevant. I’ve been a
             pathologist for 45 years and done 25,000 autopsies, and I defy anyone to find a
             reference to it in a textbook.

Bruce:   He said he found nothing of significance in the small intestine. However, he
            describes the stomachs as “full”. Does this strengthen his argument that it’s only
            been an hour since they ate their last meal?

Knight:   No. In all these matters there is a norm, in other words, most people’s stomachs
             empty within say two to four hours, but there are so many variables. And when I
             say normal circumstances, that excludes somebody who’s going to be murdered.
             Any form of physical or mental stress or strain, especially head injuries, can alter
             the speed of stomach content emptying. I’ve seen a stomach full a week after a
             silly head injury on a motorcycle.

Bruce:   Is it like a bell diagram? Is there quite a range in individuals?

Knight:   Certainly, and even a range in the same individual on different days. It depends a
             lot on the type of food and especially the amount of liquid in the food. The experts,
             who are the gastroenterological physiologists, they can give you examples of
             ranges going up to ten hours even.

     ...

Bruce:   Okay. So just to help me as a lay man, the rate of stomach emptying could range
            from one hour to ten hours?

Knight:   Ten hours is the real limit in what you might call normal circumstances. Certainly
             this bell-shaped curve applies to everything in biological matters.

Bruce:   So just to summarise then, if Christine had been threatened in some way, if she
            was apprehensive or frightened, that might slow things down?

Knight:   Yes.

Bruce:   The type of food might slow things down?

Knight:   Yes.

Bruce:   The amount of liquid?

Knight:   Liquid, all these things are variables, sure.

[7]  Mr Bruce then offered the following conclusion:

What have we learned? Well, the fresh look of the food taken from Christine and Ambers’ stomachs means nothing. When it comes to stomach emptying, the range in a normal person is like a bell diagram. Depending on the circumstances this could be one hour at one extreme, or ten hours at the other. Both ends in the case of Christine and Amber could be equally valid.

Now what does that mean in terms of Mark Lundy being the killer? Well if we agree that Christine and Amber ate their last meal at 6pm, eight hours on would be 2 in the morning, which means that Lundy doesn’t have to race up and down to Palmerston North in under 3 hours. If the time of death was at the other end of the bell diagram, he can travel north shortly after his prostitute leaves at 12.37 and he can arrive between 2 and 3 in the morning. Then he really does have time to murder his family, clean himself up and drive back to the motel to check out at 8am. You know, sometimes the truth is very simple. Just move the time of death to 2 o’clock in the morning and everything else fits.

Complaint

[8]  James Pang made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached standards relating to controversial issues, accuracy and fairness.

[9]  Dr Pang asserted that Mr Bruce had concluded that Mark Lundy deserved a retrial on the basis of a 2am time of death. He stated, “Establishing the time of death is often very difficult and sometimes impossible.” Dr Pang said that he was well aware of the limitations of establishing the time of death, but argued that in the programme Mr Bruce simply asserted that he had “placed” the time of death at around 7pm and implied that he was “dogmatic” about that time. In reality, the complainant said, he made it clear in court that:

• the time of death can only be an educated estimate;
• the time cannot be a “scientific pinpoint”; and
• establishing the time of death depends on biological processes which are subject to significant individual variations.

[10]  Dr Pang considered that Mr Bruce should have been aware of his court evidence, as he had apparently gained access to all the trial documents. He noted that TVNZ’s webpage, and “the lundytruth” website contained the following statements about his evidence:

• “He said all methods for determining the time of death use a biological process and there is some argument about the accuracy of all of them.”
• “Dr Pang said there were a number of factors that could alter the timing of stomach emptying and the digestive process.”
• “This method (stomach contents) has been reported as unreliable and could be inaccurate by several hours.”

[11]  Dr Pang argued that “For Mr Bruce to assert that I placed the time of death at 7pm, without any of the qualifications I presented to caution the court about the limitations of its interpretation, is misrepresenting the context of an important and arguably the central issue of the programme.” Dr Pang considered that this breached the accuracy standard, and also guideline 6b to the fairness standard, which requires broadcasters to ensure that extracts used do not distort the original event or the overall views expressed.

[12]  Dr Pang noted that, having asserted that he had placed the time of death at 7pm, Mr Bruce then contacted overseas experts who all expressed the limitations of establishing the time of death based on stomach contents. He reiterated that he himself was aware of these limitations and gave evidence to the court about those limitations, so that Mr Bruce was wrong to assert that “Dr Pang is at odds with international opinion”, in breach of the accuracy standard. He also argued that it implied that he was incompetent, which was unfair.

[13]  Dr Pang said that, based on his understanding of physiology, he had estimated the time of death to be around 7pm. He said that this view was supported by Professor Gilbert Barbezat of the University of Otago, who also gave evidence in court, and estimated the time of death to be “between 30 and 60 minutes” after eating, or as late as 7.15pm.

[14]  The complainant argued that Mr Bruce did not acknowledge that determining the time of death is a complex issue, instead “grossly simplifying it by referring to three opinions against the use of gastric emptying but failing to mention any other views”, for example Professor Barbezat’s evidence. Dr Pang maintained that, although there were limitations in the use of gastric emptying to estimate time of death, it was not totally dismissed. He gave examples of textbooks on forensic medicine that refer to stomach contents. The complainant concluded that, by omitting to inform the viewer of the complexity of the issue and by failing to present these other views, the programme breached Standard 4 (controversial issues).

[15]  Dr Pang noted that one of the experts Mr Bruce spoke to, Dr Knight, discussed factors that could possibly delay gastric emptying, such as stress. However, he said, he had given evidence in court that these factors were unlikely in this case because “the wounds sustained by the victims were such that death followed quickly”. He also considered that, as the stomach contents of Christine and Amber Lundy were virtually identical, stress could be ruled out as a significant factor in the rate of gastric emptying.

[16]  The complainant argued that there were “significant problems” with Mr Bruce’s assertion that the time of death was 2am, in particular, that by that time around 80 percent of the food would have passed out of Christine’s and Amber’s stomachs, when in fact “at post-mortem, the stomachs were ‘full’ and food was photographed as undigested”. Dr Pang also noted that doctors accepted that six hours was long enough to empty a person’s stomach prior to receiving general anaesthesia for surgery, while Mr Bruce’s estimated time of death would be eight or nine hours after eating. Dr Pang concluded that, “The demonstration of significant stomach contents at Christine’s and Amber’s post-mortem therefore makes Mr Bruce’s assertion of death at 2am, or even 3am, quite wrong,” and therefore inaccurate and misleading in breach of Standard 5.

[17]  Dr Pang provided articles and excerpts of books in support of his complaint.

Standards

[18]  Standards 4, 5 and 6 and guidelines 4a, 4b, 5a and 6b of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guidelines

4a   No set formula can be advanced for the allocation of time to interested parties on controversial issues of public importance. Significant viewpoints should be presented fairly in the context of the programme. This can only be done by judging each case on its merits.

4b   The assessment of whether a reasonable range of views has been presented takes account of some or all of the following:

• the programme introduction;
• whether the programme approaches a topic from a particular perspective (e.g. authorial documentaries, public access and advocacy programmes;
• whether viewers could reasonably be expected to be aware of views expressed in other coverage.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Guideline 5a

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Guideline 6b   

Broadcasters should exercise care in editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed.

Broadcaster’s Response to the Complainant

Standard 4 (controversial issues – viewpoints)

[19]  TVNZ assessed Standard 4 in relation to Dr Pang’s argument that the programme did not mention the evidence of Professor Barbezat, and omitted information about the complexity of determining time of death based on stomach contents. It first considered whether the programme discussed a “controversial issue of public importance”, which it noted had typically been defined by the Authority as something that would have “a significant potential impact on, or be of concern to, members of the New Zealand public” (e.g. Powell and CanWest TVWorks¹). TVNZ asserted that a controversial issue was one which had topical currency and excited conflicting opinion, or about which there had been ongoing public debate (see, for example, MSD and TVNZ²). The broadcaster did not consider that “Mr Bruce’s investigation into the facts of the Lundy case” was such an issue.

[20]  However, even if it was a controversial issue of public importance, TVNZ argued that the programme was clearly approached from an “authorial” perspective, namely Mr Bruce’s investigation into the Lundy case and his beliefs based on his examination of the evidence.

[21]  With regard to the programme’s omission of information about Professor Barbezat’s testimony, TVNZ noted that Mr Bruce stated in the programme that:

No other pathologist was called at trial to counter Dr Pang’s view that time of death was one hour after the last meal based on his observation of stomach contents. Dr Pang was simply cross-examined by defence counsel. The jury therefore only heard one unchallenged view that placed the time of death around 7pm on the night in question and this raised considerable doubt as to whether Mark Lundy could have committed the murders...

[22]  TVNZ argued that the programme did not mention Professor Barbezat’s evidence relating to the physiology of digestion because Mr Bruce “made the judgement that in an extremely specialised field such as pathology and a discussion relating to time of death which is notoriously difficult to determine even amongst those qualified to make such determinations, Professor Barbezat’s comments were not especially helpful.” It noted that prosecution counsel at the trial had objected to Professor Barbezat being called as a physiologist because he was not present at the autopsies.

[23]  The broadcaster emphasised that Mr Bruce had consulted three international, published medical experts and that their opinions on time of death in relation to stomach contents were discussed on the programme.

[24]  With regard to the programme’s omission of the evidence Dr Pang gave about the limitations of determining time of death based on gastric emptying, TVNZ provided extracts of the evidence Dr Pang had given, and concluded that “it appears that none of the limiting factors [Dr Pang] spoke about in court had affected [his] conclusion about the time of death after eating (one hour) – and [he stated] that [he] took all the factors into consideration in this conclusion”. For example, Dr Pang gave the following answers:

• “...to the extent that psychological, emotional stress or physical stress would affect gastric emptying or digestion it would be only a matter of minutes to alter timing, at most a few minutes.”
• “Taking into consideration all the factors, I would estimate [the time of death] to be one hour.”
• “Arriving at the conclusion of one hour I’ve allowed for the factors that may delay gastric emptying.”
• “It’s possible to have a slight margin of error as I said yesterday if there’s a struggle or [emotional] upset there may be a delay in gastric emptying but to the extent of several minutes.”
• “Arriving at the conclusion of one hour I would be quoting allowance for the margins or different factors so you could say the margin is more than an hour – maybe up to 10 minutes, it’s possible – acceptable – but to stretch it beyond, I don’t know how far you can stretch the limits of the factors because they probably would require the expertise of the physiologist, rather than a pathologist.”
• “My opinion is that probably one hour would allow for the other factors in this particular situation, such as a fatty meal... or some psychological upset, but we can stretch it to one hour and 15 minutes, it is within my expertise to say that.”

[25]  TVNZ said that Mr Bruce had therefore concluded that the “limitations” referred to by Dr Pang in his complaint, “which [he] discounted as having any effect”, were not necessary to include in the programme.

[26]  TVNZ concluded that it was not necessary, in the interests of balance, to include information about Professor Barbezat’s testimony or the limiting factors referred to by Dr Pang, and it declined to uphold the complaint under Standard 4.

Standard 5 (accuracy)

[27]  TVNZ considered each of the accuracy points raised by Dr Pang.

Statement that Dr Pang placed the time of death at 7pm, without the qualifications he gave in court

[28]  TVNZ reiterated its view that Dr Pang clearly stated that the time of death was one hour to one hour and ten minutes after eating, being around 7pm. It considered that Dr Pang had disqualified the suggested limitations on the assessment of time of death, concluding that it would have had an effect of “a matter of minutes” on the time he had determined.

Statement that “Dr Pang is at odds with international opinion”

[29]  TVNZ noted that in the programme Mr Bruce stated that Dr Pang’s opinion “flies in the face of internationally accepted opinion in this area”. It considered that this left open the possibility that Dr Pang was right, even though the majority of his peers would not agree with him. TVNZ provided comments from Mr Bruce, who noted that the opinions of the experts he consulted considered that “Dr Pang’s opinion that time of death can be narrowed to one hour based on stomach content observations is not the broadly accepted opinion by pathologists on the world stage”.

[30]  Mr Bruce noted that he reported in the programme that Dr Diamant had given evidence in a Canadian murder case that “Virtually all of the literature in the forensic medicine area describes any attempt to define the exact time of death or even time of death within a time limited to a period such as one or two hours, as unreliable.” Mr Bruce therefore considered that “Dr Pang’s opinion that he could narrow the time of death of Christine and Amber Lundy to within one hour after eating the last meal flies in the face of internationally accepted opinion in this area.” TVNZ noted that the outcome of the Canadian case had been overturned because the original time of death based on stomach contents was found to be unreliable. Noting that Dr Pang had argued that using gastric emptying was “not totally dismissed”, TVNZ maintained that the Canadian case was “considered internationally to have shown that this method (gastric emptying to determine time of death) is considerably flawed”.

[31]  The broadcaster therefore declined to uphold this part of the accuracy complaint.

Evidence and assumptions made by Mr Bruce when speaking with Dr Knight were incorrect

[32]  TVNZ argued that the point being made in Dr Knight’s discussion with Mr Bruce about a “bell curve” relating to gastric emptying was that the time of death could be placed at any time between one hour and ten hours after eating, which was why stomach content was not internationally accepted as a reliable indicator of time of death. “Certainly not one that could reliably limit the time of death to one hour,” it said.

[33]  In response to Dr Pang’s argument that Mr Bruce’s estimated time of death of 2am was incorrect, TVNZ noted that Mr Bruce did not place the time of death at 2am, but said that he thought the murders were committed “in the dead of night”. In the programme Mr Bruce discussed the possibility that the time of death could have been at the other end of the bell curve, maybe eight hours after eating, and concluded that, “Just move the time of death to 2 o’clock in the morning and everything else fits,” TVNZ said. Based on that possibility, Mr Bruce offered his own opinion that Mark Lundy had committed the murders at a later time.

Mr Bruce did not mention Dr Pang’s evidence about gastric emptying in relation to surgery

[34]  TVNZ said that Mr Bruce pointed out that Christine and Amber were not “normal” people about to have surgery, but were murdered. He reiterated that no one knew what their phone conversation with Mark Lundy entailed, and that he could have been abusive or threatening. “It is accepted that stress such as this can have a pronounced effect on digestion,” it said.

[35]  TVNZ concluded that none of the points raised by Dr Pang were inaccurate in breach of Standard 5.

Standard 6 (fairness)

[36]  TVNZ assessed the aspects of the programme that Dr Pang raised in relation to fairness.

Mr Bruce implied that Dr Pang was incompetent because he did not report parts of Dr Pang’s testimony, he omitted the views of other experts, and portrayed him as “at odds with international opinion”

[37]  TVNZ reiterated that Dr Pang in his testimony had been clear that the time of death, taking all limiting factors into account, was between one hour and one hour and ten minutes after eating. It maintained that the presentation of this in the programme was not unfair.

[38]  With regard to Dr Pang’s argument that the programme did not mention that Professor Barbezat agreed with his estimated time of death, TVNZ reiterated that Professor Barbezat’s testimony was discounted in court because he was not a pathologist and did not attend the autopsies. TVNZ argued that the Professor’s testimony was not material, and that it was not unfair to Dr Pang to omit that information.

[39]  TVNZ reiterated its view that Mr Bruce’s statement that Dr Pang’s opinion “flies in the face of internationally accepted opinion” allowed for the possibility that Dr Pang was correct, even though his peers did not agree. It said that Mr Bruce was not interested in discussing Dr Pang’s “incompetence” but “was simply looking at this piece of evidence that was given by [him] in the trial”.

The programme stated that Dr Pang placed the time of death at 7pm without the qualifications and limitations he discussed in court

[40]  TVNZ maintained that Mr Bruce fairly presented Dr Pang’s testimony, namely, that any limiting factors had little or no effect on the digestion of Christine’s and Amber’s last meals. It therefore disagreed that it was unfair not to discuss the limiting factors in those circumstances.

[41]  TVNZ declined to uphold the complaint that Dr Pang was treated unfairly in breach of Standard 6.

Referral to the Authority

[42]  Dissatisfied with the broadcaster’s response, Mr Pang referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[43]  Looking at Standard 4, Dr Pang disagreed that the programme did not discuss an issue of public importance. He noted that the Lundy case had been canvassed in the media for over a decade, and that the programme itself had been discussed in the media which suggested it was newsworthy rather than merely entertainment. He also noted that Mr Bruce’s “simple solution” to the “puzzle” would have challenged viewers’ faith in the New Zealand justice system, which he considered was clearly a serious issue of public interest.

[44]  Dr Pang disagreed with TVNZ’s reasons for excluding evidence from Professor Barbezat, noting that most of the experts that Mr Bruce consulted were also physiologists. He reiterated the points he listed from his testimony in his original complaint, relating to the limitations of establishing time of death. He maintained that his estimated time of death had to be considered in the context of those limitations, including that it was not a “scientific pinpoint” and could be inaccurate by several hours. The complainant reiterated that his evidence relating to the limitations of estimating time of death was consistent with the opinions of the experts Mr Bruce consulted. He noted that Dr Knight’s comments about the limitations were consistent with what he had said in court, and therefore argued that his views did not contradict international opinion.

[45]  With regard to TVNZ’s arguments relating to a Canadian case, Dr Pang maintained that the cases were not similar, as that case was dependent on establishing an “accurate time of death” and “enough evidence to pinpoint” the time of death. He reiterated that in court he had stated that the method used in the Lundy case was unreliable and could be inaccurate by several hours. Dr Pang considered that, if gastric emptying was an extremely unreliable method, no one could say for certain what the time of death was, and equally could not exclude any time as the time of death, including his estimate of 7pm.

[46]  Dr Pang noted that he had conducted the autopsies based on a textbook (excerpts of which were attached to his original complaint), and maintained that Mr Bruce should have included the views of experts featured in that book. He considered that if the programme had included these views, it would have been obvious that his peers did not disagree with him, as asserted by Mr Bruce.

[47]  With regard to Dr Knight’s “bell curve” of stomach emptying, Dr Pang argued that Mr Bruce had confused emptying of the stomach with time of death. He reiterated his view that Mr Bruce’s estimate of a 2am time of death was incorrect.

Broadcaster’s Response to the Authority

[48]  TVNZ maintained that Mr Bruce was not interested in commenting on Dr Pang’s competence. Mr Bruce’s focus was to examine the validity of Dr Pang’s estimate of time of death, it said, and he submitted Dr Pang’s opinion to a number of his peers with established international reputations in forensic medicine. Mr Bruce learned from this that “the idea that stomach content can be helpful in determining time of death is much discredited”. TVNZ considered that it was fair for Mr Bruce to comment that Dr Pang’s view “flies in the face of internationally accepted opinion in this area” as a way of summarising the other experts’ opinions. It reiterated that the court transcript recorded Dr Pang as identifying the “margin of error” for the estimated time of death as ten minutes.

[49]  TVNZ argued that the programme did not say that Dr Pang’s estimate of time of death was wrong, but rather Mr Bruce argued that, from the evidence provided by the three experts he consulted, “like all biological processes rates of digestion are on a bell-shaped curve”. It contended that a “full” stomach did not necessarily indicate that the meal had been consumed shortly before the murders, based on the other factors discussed by Dr Knight, and that Mr Bruce formed the opinion that the murders could as easily have happened at 2am as at 7pm. Mr Bruce did not say that they died at 2am, it said, but said that Mark Lundy could have arrived “between 2 and 3 in the morning”, and invited viewers to think about the implications of moving the time of death to 2am.

[50]  With regard to Standard 4, TVNZ argued that, while there was curiosity about certain aspects of the Lundy case, and there had been some media attention, it was not an issue of public importance in the sense that it had “a significant potential impact on, or [was] of concern to, members of the New Zealand public,” or in the sense that there had been ongoing public debate about it.

[51]  TVNZ maintained with regard to the Canadian case that “this is a bench-mark case in the area of stomach emptying and time of death” and that Professor Diamant’s report was instrumental in overturning the conviction. TVNZ said that Mr Bruce considered that if Dr Pang’s views were generally accepted, the accused would still be serving his life sentence and would not have been acquitted. Mr Bruce therefore was of the view that he was entitled to state that Dr Pang’s opinion “flies in the face of internationally accepted opinion”.

[52]  With regard to Dr Pang’s testimony and his arguments that the programme neglected to mention that he had outlined the limitations of establishing time of death, TVNZ noted that in fact he had only once addressed these limitations, during cross-examination, and that nevertheless Dr Pang was precise in his estimate of 7pm. TVNZ argued that, as Mr Bruce could not present his entire testimony in the programme, it was fair and accurate to state that Dr Pang had identified the time of death as 7pm. It provided excerpts of his testimony demonstrating that Dr Pang gave “a very precise time of death” of within an hour, or maybe an hour and ten minutes, and noted that Dr Knight was of the view that the minimum interval used in discussing times since death was an hour.

[53]  TVNZ reiterated that Mr Bruce did not argue that Dr Pang was wrong, but rather that the bell curve discussed allowed for a much later time of death, which Dr Pang’s testimony did not acknowledge.

[54]  TVNZ provided comments from Mr Bruce to the effect that it was unreasonable to report on the views of every expert or every pathologist. He said that he took Professor Diamant as the benchmark because he had reviewed all of the forensic literature in this area, and that Professor Diamant had concluded that basing time of death on stomach contents was unreliable.

[55]  TVNZ noted that Dr Pang had questioned why, if Mr Bruce’s solution was so “simple”, it had been missed during the trial. TVNZ said that there were many possible reasons why the 7pm time of death was not challenged, and that Mr Bruce did not challenge the court system but rather examined whether that time of death was valid and whether another time of death could be equally valid. It maintained that Mr Bruce was entitled to undertake such an examination and broadcast his critical analysis of the matter in accordance with the right to freedom of expression. It reiterated that the programme was not a critique of Dr Pang’s competence.

[56]  The broadcaster concluded by saying that the programme was clearly presented as Mr Bruce’s opinion on what may have occurred, and that it was clear that he was a journalist rather than a pathologist. The series and its format were well known to viewers, it said.

Complainant’s Final Comment

[57]  Dr Pang maintained that he had not given a specific time as being one hour to one hour and ten minutes after eating, but said that the entire range or variation from one hour was “10-15 minutes plus a range which I said would require the help of a physiologist”, and argued that this was the interval between the injuries and death. Dr Pang wrote:

It is true that I estimated the time of death to be around 7 o’clock. But the half that is not true in this case is that I have not determined the time of death as if gastric emptying is a forensic clock. I gave an estimated time plus a known margin (time from attacks to death) plus yet another additional margin for which I said in court I would require the help of a physiologist (who is the real expert in gastric emptying) to determine.

It is true that there is agreement that we do not use gastric emptying as a forensic clock. What is not true is Mr Bruce’s assertion in the programme that the use of stomach contents is totally dismissed. Gastric emptying can be of some use on some occasions.

[58]  Dr Pang maintained that presenting him as “placing the time of death at 7pm” while omitting his qualifying, conditional statements, was inaccurate and unfair. For the same reasons he maintained that it was inaccurate and unfair to state that his opinion “flies in the face of internationally accepted opinion”.

[59]  The complainant reiterated his view that Mr Bruce was wrong to “completely dismiss” stomach contents as a method of establishing time of death, and that this breached Standard 4 because it was not a balanced view. He noted the opinion of experts that there were instances where gastric contents provided the only practical means of evaluating time of death. Dr Pang maintained that not mentioning the evidence of Professor Barbezat was a “serious omission”.

[60]  The complainant argued that the programme raised serious issues about his evidence in court and that it asserted that he gave a precise time of death, when in fact his estimate was conditional and qualified. He contended that this was analogous with Mr Bruce’s treatment of Daryl Young, considered by the Authority in Young and TVNZ,³ because he was not given a fair and reasonable opportunity to clarify his viewpoint. Dr Pang noted that Mr Bruce did not make any attempt to contact him.

[61]  Dr Pang reiterated his arguments that it was misleading for Mr Bruce to estimate the Lundys’ time of death at 2am, based on the “bell curve”, and that it made his estimate of 7pm seem “even more wrong”, in breach of Standards 4 and 5.

Broadcaster’s Final Comment

[62]  TVNZ maintained that the purpose of the programme was not to criticise Dr Pang’s competence.

[63]  With regard to Professor Barbezat’s evidence, it noted that in his testimony, when asked whether he could assess the time of death based on digestion, he responded that “It can certainly give one some idea of when the patient died relative to taking the last meal”. Mr Bruce argued that, “A one line statement to the effect that Professor Barbezat gave similar testimony [to Dr Pang] was not required and therefore did not mislead the viewer. What was at issue was the opinion that Dr Pang gave that time of death could be determined from the condition of stomach contents alone. Professor Barbezat was called to explain rates of stomach emptying – but his experience was in normal people not murder victims.”

[64]  With regard to the statement in the programme that Dr Pang’s view “flies in the face of internationally accepted opinion”, Mr Bruce said he was making the point that Dr Pang “holds a minority view about the usefulness of stomach contents in determining the time of death”. TVNZ considered that it was clear from the literature that the broadly held opinion among Dr Pang’s peers was that “assessing time of death based on stomach contents alone is unreliable”. It reiterated its view that Dr Pang clearly stated he had taken into account all relevant factors in estimating a time of one hour and ten minutes. Mr Bruce said that “As Dr Pang had dismissed these factors not mentioning them in detail is hardly unfair to him or inaccurate.” TVNZ noted Dr Pang’s evidence that “Taking into consideration all the factors, I would estimate it to be one hour.” It argued that, “It is clear anyway that Dr Pang thinks a variation of minutes in estimating time of death is a long time where the majority of his colleagues in the literature state that estimating a variation in terms of minutes is not possible.”

[65]  TVNZ disagreed that Dr Pang’s situation was analogous to Daryl Young’s. Dr Pang gave expert testimony as a pathologist and “must expect to be questioned and held to account for this testimony,” TVNZ argued. Mr Bruce considered that Dr Pang’s opinion was very clear from his testimony, and noted that his view had been consistent throughout the complaints process.

[66]  Mr Bruce commented that his argument in the programme was that, while the deaths could have happened around 7pm, “because of the far wider range of the biological processes with regard to stomach content” they could also have occurred much later. “Dr Pang is entitled to his opinion, I, based on the experts I consulted, am entitled to mine – to that extent the viewers were not misled,” Mr Bruce said.

[67]  Mr Bruce argued that he did not place the time of death of Christine and Amber at 2am, but simply “put a different scenario” to viewers, which Dr Pang disagreed with.

Authority’s Determination

[68]  The members of the Authority have viewed a recording 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 (controversial issues – viewpoints)

[69]  Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[70]  We must first consider whether the programme discussed a controversial issue of public importance, defined as something that would have “a significant potential impact on, or be of concern to, members of the New Zealand public” (e.g. Powell and CanWest TVWorks⁴), or a matter which has topical currency and excites conflicting opinion, or about which there has been ongoing public debate (for example, MSD and TVNZ⁵).

[71]  Dr Pang argued that the programme breached Standard 4 because it did not present sufficient information about his testimony, and about the reliability of using stomach contents to determine time of death. In our view, the programme was inherently presented as Mr Bruce’s personal opinion and analysis of the Lundy case. The programme did not purport to be a balanced discussion of the efficacy or otherwise of establishing time of death based on gastric emptying, and in any case we do not consider that this is a controversial issue of public importance in the sense that it is of significance to New Zealanders, or has been the subject of ongoing public debate. In these circumstances, we find that it was not necessary, in the interests of balance, for TVNZ to present other parts of Dr Pang’s evidence, Professor Barbezat’s evidence, or the views of other scientific experts, as argued by the complainant.

[72]  We therefore decline to uphold the complaint under Standard 4.

Standard 5 (accuracy)

[73]  Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. Guideline 5a states that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

[74]  In our view, the title of the programme, The Investigator, suggested that it was a programme based on analysis, comment and opinion. The format of the programme, in which Mr Bruce set about his analysis of the facts and gave his own conclusions, confirmed this. The programme was inherently and obviously one in which the presenter and his views predominated. We consider that a reasonable viewer would have understood the programme was authorial in nature, that Mr Bruce was arguing for the particular conclusions he had reached, and that he was selective in what was put forward in support of those arguments and conclusions.

[75]  Against this background, we now turn to consider the accuracy points raised by Dr Pang.

Mr Bruce stated that Dr Pang “placed” the time of death at 7pm, without reference to Dr Pang’s evidence about the limitations of establishing the time of death

[76]  Dr Pang argued that Mr Bruce implied that he was “dogmatic” about 7pm being the time of death, and ignored the qualifications he presented to the court with regard to that view. TVNZ maintained that Dr Pang had clearly offered his view in court that the time of death was 7pm, and that he had discounted other variables that could have altered the time of death.

[77]  Based on the information provided by TVNZ, including excerpts of Dr Pang’s evidence from the trial (see paragraph [24]), we are satisfied that Dr Pang did estimate the time of death to be around 7pm (in other words, approximately one hour after Christine and Amber’s last meal). We also agree that throughout his correspondence Dr Pang has consistently offered the view that the time of death was around 7pm, for example writing, “It is true that I estimated the time of death to be around 7 o’clock.” (paragraph [57]).

[78]  Accordingly, we find that the programme was not inaccurate in this respect, and that viewers would not have been misled by the omission of other parts of Dr Pang’s evidence relating to the limitations of determining time of death based on stomach contents.

[79]  We therefore decline to uphold this part of the Standard 5 complaint.

Mr Bruce stated that Dr Pang was “at odds with international opinion” and that his view “flies in the face of internationally accepted opinion in this area”

[80]  In our view, these comments by Mr Bruce were not material points of fact, but were clearly distinguishable as his opinion and analysis based on the views of the experts he consulted. We therefore find that these statements were exempt from standards of accuracy under guideline 5a, and we decline to uphold this part of the complaint.

Mr Bruce’s statements and assumptions relating to the “bell curve” of speed of gastric emptying, and his assertion that the time of death was 2am

[81]  TVNZ argued that the point being made in Dr Knight’s discussion with Mr Bruce about a “bell curve” relating to gastric emptying was that the time of death could be placed at any time between one hour and ten hours after eating, which was why gastric emptying was not internationally accepted as a reliable indicator of time of death. It said that on this basis Mr Bruce had put forward the possibility that the time of death could have been at 2am, on a different spot on the bell curve.

[82]  In our view, it would have been clear to viewers that Mr Bruce was offering his opinion and analysis based on the information that he discussed with Dr Knight. Mr Bruce put forward an alternative scenario in which Mark Lundy could have committed the murders; he did not state as fact that the time of death was 2am. Viewers were privy to Mr Bruce’s phone conversation with Dr Knight, so they were aware of the basis for his arguments. Furthermore, reasonable viewers would appreciate that different scientific experts have different opinions, and that other experts might disagree with Dr Knight’s analysis. In any case, Mr Bruce was entitled to offer his own opinion about the manner in which Mark Lundy might have committed the murders, and the time of night that might have occurred.

[83]  Accordingly, we find that Mr Bruce’s comments in this respect were exempt from standards of accuracy under guideline 5a, and we decline to uphold this part of the Standard 5 complaint.

Standard 6 (fairness)

[84]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[85]  Dr Pang argued that he was treated unfairly because Mr Bruce implied that he was incompetent, the programme omitted aspects of his evidence, and he was not given an opportunity to comment.

[86]  In our view, the programme did not make any judgement about Dr Pang’s competence. Viewers would have understood that to sustain his argument that the deaths occurred much later than the prosecution contended, Mr Bruce had to challenge the validity of Dr Pang’s evidence and estimated time of death. This was clearly an exercise by Mr Bruce in advocacy for his particular position and the conclusions he had reached after consulting several experts, rather than any comment on Dr Pang’s competence as a pathologist.

[87]  Further, as already noted, reasonable viewers would be aware that different experts hold different opinions. We consider that an expert witness who gives evidence in a case which attracts media attention should expect that his or her views might be subject to challenge or criticism.

[88]  We are also of the view that it was not necessary, in the interests of fairness, for Mr Bruce to contact Dr Pang for a response. Mr Bruce was in possession of Dr Pang’s testimony and his views about the time of death, and these spoke for themselves. As already determined under accuracy, we do not consider that the omission of parts of Dr Pang’s evidence affected viewers’ understanding of the conclusions that he reached about the time of death.

[89]  Overall, we do not consider that viewers would have been left with an unfairly negative impression of Dr Pang, or that the programme was likely to have any adverse effect on his professional standing. 

[90]  Accordingly, we find that Dr Pang was treated fairly and we decline to uphold the Standard 6 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
13 September 2011

Appendix

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

1                  Dr James Pang’s formal complaint – 30 November 2010

2                 TVNZ’s response to the complaint – 21 February 2011

3                 Dr Pang’s referral to the Authority – 10 March 2011

4                 TVNZ’s response to the Authority – 27 May 2011

5                 Dr Pang’s final comment – 14 June 2011

6                 TVNZ’s final comment – 29 June 2011

¹Decision No. 2005-125

²Decision No. 2006-076

³Decision No. 2010-119

⁴Decision No. 2005-125

⁵Decision No. 2006-076