BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

                                 INTERLOCUTORY DECISION

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Interlocutory applications for production of field tapes – documentary entitled Monster of Berhampore about alleged child abuse in Berhampore Children’s Home – complainant alleging programme unbalanced – seeking disclosure of additional material not broadcast by TVNZ

Decision on interlocutory application
Field tapes not required to determine relevant issues – applications declined – Authority will seek submissions on substantive issues

This headnote does not form part of the decision.

Background

[1] At 7:30 pm on 1 May 2005, during Sunday, Television New Zealand Ltd broadcast an item entitled The Monster of Berhampore. The subject of the item was Walter Lake, who during the 1950s and 1960s had run the Berhampore Children’s Home in Wellington.

[2] The documentary interviewed a number of former residents of the home who alleged that Mr Lake had sexually abused them. The programme also revealed that a former deaconess of the Presbyterian Church, Mavis van Dalen, had on three occasions told Church authorities of the allegations, and yet no action was taken.

[3] Brian Robinson complained to TVNZ that the programme breached standards 2 (law and order), and 4 (balance) of the Free-to-Air Television Code of Broadcasting Practice.

Law and order

[4] Mr Robinson alleged that the programme was premised on the assumption that Mr Lake was guilty, contrary to the fundamental principle of “innocent until proven guilty”.

Balance

[5] Mr Robinson also maintained that the programme was unbalanced and partial in that it failed to address the possibility that Mr Lake was in fact innocent.

[6] TVNZ did not uphold the complaint, and Mr Robinson referred the matter to the Authority.

Mr Robinson’s Procedural Requests

[7] On referring the matter to the Authority, Mr Robinson requested that the Authority require TVNZ to produce:

• the field tape of the interview with Mavis van Dalen
• the field tape of the interview with Presbyterian Support representative Trevor Roberts
• the field tapes of all other interviews.

[8] The reasons for these requests were as follows:

Tape of interview with Mavis van Dalen

[9] Mr Robinson expressed concern that the evidence of Mavis van Dalen was presented as being a “revelation”, in that she was presented as an additional witness to the alleged abuse. Mr Robinson argued that, at most, Ms van Dalen could provide hearsay evidence about the alleged abuse, and that her evidence was therefore of limited value to the investigation.

[10] Mr Robinson maintained that the full tape of Ms van Dalen’s interview was needed in order to assess whether TVNZ had known that she was never an additional witness to the alleged abuse. Only then, he argued, could the Authority assess whether TVNZ was being “deliberately dishonest and deceitful” in presenting her as such.

Tape of interview with Trevor Roberts

[11] Mr Robinson also expressed concern that despite the Presbyterian Support Services’ representative, Trevor Roberts, expressing doubt as to the credibility of some of the complainants, the programme did not further explore this issue. Mr Robinson noted that Mr Roberts went into more detail on this issue during an interview on Radio New Zealand. He argued that it would have been a serious omission on TVNZ’s part to leave this information out of the item had Mr Roberts discussed it in his interview.

[12] The field tape was needed, Mr Robinson argued, to ascertain whether Mr Roberts provided such additional information, which was then ignored by TVNZ.

Tapes of other interviewees

[13] The other tapes were required, Mr Robinson argued, in order to establish whether there was sufficient information available to the reporter to justify his belief that Walter Lake was guilty.

Broadcaster’s Response to the Authority

[14] TVNZ opposed the release of the field tapes on the grounds that they are similar to a reporter’s notebook, and to request them would amount to an unwarranted interference in the editorial process.

Complainant’s Final Comment

[15] Mr Robinson disagreed with TVNZ, in that:

• The BSA would not be interfering in the editorial process, but would simply be considering issues of fairness and accuracy
• TVNZ did not have an unfettered right to free expression
• the analogy with a journalist’s notebook was wrong.

[16] Mr Robinson concluded that the tapes were not central to his argument that the codes had been breached, but would instead provide evidence of the seriousness of the breach.

[17] Mr Robinson also suggested that if the Authority elected not to require the tape of the interview with Mr Roberts, it could nevertheless ask Mr Roberts to give evidence before the Authority.

Authority's Determination

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

[19] The Authority has the power, under section 12 of the Broadcasting Act 1989 and sections 4B(1) and 4C(1)(b) of the Commissions of Inquiry Act 1908, to require parties to produce information or documents.

[20] The Authority has previously held, in Decision No. 2002-179, that the intent of these statutory provisions is to allow the Authority to require the production of evidence only if that evidence is necessary to enable the Authority to deal effectively with the subject of the complaint. Applicants will be expected to make a compelling argument for the production of the material. These are the principles the Authority applies in the present case.

[21] The complainant has requested that the Authority require TVNZ to produce field tapes of all the interviews conducted in preparing the programme. In particular, he requested tapes of the interviews with Mavis van Dalen and Trevor Roberts. The Authority deals with each of the requests separately.

Mavis van Dalen

[22] The complainant says that the field tape of the interview is necessary because the programme presented Ms van Dalen as being an additional witness to the alleged abuse. He asserts that the field tape of Ms van Dalen’s interview would confirm whether this stance was justified.

[23] The Authority does not agree that the programme suggested Ms van Dalen was a witness to the abuse. The programme instead reported that Ms van Dalen had, on a number of occasions, notified a senior Church figure of the allegations made by some former residents of the home, but that nothing was done in response.

[24] In light of Ms van Dalen’s role in the programme, Mr Robinson’s argument for the production of the field tape does not succeed. The Authority considers that there is no need to see the tape in order to deal effectively with the relevant issues.

Trevor Roberts

[25] Mr Robinson argued that the Authority needed to view a field tape of the interview with Mr Roberts to determine whether he made further allegations damaging the credibility of the alleged abuse victims. If he did, Mr Robinson claimed, the Authority would need to consider whether TVNZ’s failure to broadcast this material affected the balance of the programme.

[26] Again, the Authority does not agree. It is clear from the programme that the reporter directly asked Mr Roberts to elaborate on his comment about the credibility of some complainants. He refused to. In these circumstances there is no need to go to the field tape to ascertain what Mr Roberts said. He made it clear in what was broadcast that he intended to make no further comment in relation to that issue.

Other field tapes

[27] Finally, the complainant submitted that the Authority should consider the field tapes of all interviews, as this would enable it to determine whether the reporter had a sufficient factual basis for his view that Mr Lake was guilty of the abuse alleged.

[28] A complainant requesting production of field tapes to assess a programme’s balance needs to make a persuasive case that the tapes may contain information relevant to the Authority’s determination.

[29] In the present case, the complainant asserts that the programme’s assumption of Mr Lake’s guilt may be shown to be unfounded in light of the information in the field tapes. Mr Robinson has not, however, provided any detail regarding what this additional information might be or how it might affect the programme’s conclusions. His application is entirely speculative.

[30] In this regard the Authority also notes TVNZ’s advice that Mr Lake’s family – the people the Authority considers most likely to have supported Mr Lake – chose not to participate, and would thus not have been on the field tapes.

[31] In these circumstances, when it has no information or argument before it tending to establish the relevance of the material requested, the Authority sees no basis on which to require production of all the field tapes.

For the above reasons the Authority declines the complainant’s request, pursuant to section 12 of the Broadcasting Act 1989, for production of:

• the field tape of the interview with Mavis van Dalen
• the field tape of the interview with Trevor Roberts
• the field tapes of all other interviews conducted in preparing the programme.

[32] The Authority will now seek further submissions from the parties on the substantive issues before determining the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
28 September 2005

Appendix

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

1. Brian Robinson’s formal complaint to Television New Zealand Ltd – 26 May 2005
2. TVNZ response to formal complaint – 13 June 2005
3. Mr Robinson’s referral to the Authority – 11 July 2005
4. TVNZ’s response (including on interlocutory issues) – 8 August 2005
5. Mr Robinson’s final submission on interlocutory issues – 17 August 2005