BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

The chair, Joanne Morris, declared a conflict of interest and declined to participate in the determination of this complaint.

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Exposé – King of Speed – documentary about Dr Tom Madlener who was convicted of manufacturing methamphetamine in the United States nearly twenty years ago – plea bargain required him to testify against drug distributors when released from prison – documentary reported that he had absconded to New Zealand where he obtained permanent residence although he was a fugitive from United States justice – alleged invasion of privacy of Dr Madlener and his wife Dr Davis, and allegedly unbalanced, inaccurate and unfair

Findings
Standard 3 (privacy) – information about Dr Madlener public as contained in a High Court judgment – information had not become private again (Principle (ii)) – not upheld – information about Dr Davis not private as available from her website – not upheld

Standard 4 (balance) – immigration matter controversial issue of public importance – adequate efforts made and opportunities given to obtain Dr Madlener’s comments – not upheld

Standard 5 (accuracy) – no inaccuracies – not upheld

Standard 6 (fairness) – unfairness arising as a result of inaccuracies inapplicable as no inaccuracies – not upheld

This headnote does not form part of the decision.

Broadcast

[1] Exposé – King of Speed, broadcast on TV One at 8.30pm on 1 September 2004, was a documentary about Dr Russell Thomas Madlener, an American living in New Zealand.  It was reported that he had been operating large illegal methamphetamine laboratories in the United States in the 1980s.  After his arrest, he had agreed to a plea bargain under which he would, when released from prison, testify against some drug dealers.  It was reported that he failed to give evidence on one occasion and a warrant for his arrest had been issued.  Efforts to deport him from New Zealand had been unsuccessful and, later, he had been granted permanent residence.  When approached on two occasions, he was filmed declining to answer questions.

Complaint

[2] Acknowledging that he knew Dr Tom Madlener and his wife, Dr Kathrine Davis, Hugh Steadman complained to Television New Zealand Ltd, the broadcaster, that the item was inaccurate, unbalanced, unfair and had invaded the couple’s privacy.

[3] Mr Steadman began by pointing out that the criminal activity referred to, the manufacture of a Class C drug, had occurred some 19 years previously.  The item, he added, had been dishonest and unfair to link methamphetamine with P, a drug of a totally different order.  Having spoken to Dr Madlener, Mr Steadman wrote:

… it would take several pages to detail every apparently deliberate inaccuracy and misrepresentation of the truth that the programme contained.  The inaccuracies are on such a scale that they cannot be passed off as simply an indolent failure to check facts and must be regarded as the product of a deliberate bias.

[4] Furthermore, he complained, the use of visuals of aircraft and freight trains exaggerated the scale of the offending, as the total sums involved had been less than US$500,000.  That was reflected in the initial sentence of two years imprisonment which was reduced, following Dr Madlener’s severe health deterioration in prison, to time served – approximately three months – 1000 hours of community service and five years probation.

[5] Dr Madlener, Mr Steadman wrote, had also agreed to give evidence against some serious criminals.  He had done so on six occasions but had received death threats and he and his new wife had lived in real fear.  While on the point of answering the seventh subpoena, Mr Steadman noted, Dr Madlener had been threatened and he and his wife subsequently fled the United States.  Mr Steadman added that the death threats were accepted as valid by the New Zealand authorities.

[6] Mr Steadman said that he had known the couple for about 10 years.  Dr Davis, an Australian, had become a New Zealand citizen and Dr Madlener had applied for citizenship.  Both, he commented, were “excellent veterinarians” who also were involved in the manufacture of veterinary products, and:

The gratuitous display of one of these products for no apparent reason other than to associate it with a “major drug baron” can have been intended only to harm the sales of the products in question and limit Tom and Kathrine’s ability to earn their living (and incidentally, to do mischief to NZ’s exports.)

[7] Mr Steadman acknowledged Dr Madlener’s offending – “one mistake 19 years ago” – which Dr Madlener said he now regretted.  Because of his concerns that he might be required to return to the United States, Dr Madlener preferred to keep a low profile.  There had been no justification to refer to Dr Kathrine Davis as they had met after he had been apprehended and, in view of her work, which included giving lectures, the programme had caused her embarrassment and possible financial loss.

[8] The reference to the hoard of Kruger Rands hidden in a car in the opening sequence was unbalanced, Mr Steadman argued, as it was implied that it was drug money.  However, the Kruger Rands had been bought by Dr Madlener following the sale of his veterinary business in Seattle.  Mr Steadman explained:

As, at that time, he and his wife were still understandably nervous, having so recently escaped an attempt on their lives, they prudently kept a stash of usable money so that they could flee at short notice should they get wind of an assassin having followed them to NZ. Melodramatic maybe, but then I guess it is hard to judge if no one has ever made a serious attempt on your life.

[9] Mr Steadman considered that TVNZ should apologise to Drs Madlener and Davis.

Further Correspondence

[10] Pointing out that Dr Madlener had not complained about the broadcast, TVNZ sought further details from Mr Steadman in regard to his complaint about the programme’s detailed inaccuracies and misrepresentations.

[11] In response, Mr Steadman said that while Dr Madlener had told him that the item contained 22 examples of misrepresentation and inaccuracies, he was of the view that the points he had raised in his complaint were sufficient for TVNZ “to chew on prior to deciding whether or not the general tenor of the programme was a fair and justified portrayal of the truth”.

Standards

[12] TVNZ assessed the complaint under the standards in the Free-to-Air Television Code of Broadcasting Practice nominated by the complainant.  They read:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Guideline 3a

Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.

Privacy Principles

ii) The protection of privacy also protects against the public disclosure of some kinds of public facts.  The “public” facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time.  Nevertheless, the public disclosure of public facts will have to be highly offensive to a reasonable person.

iv) The protection of privacy also protects against the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person.  This principle is of particular relevance should a broadcaster use the airwaves to deal with a private dispute.  However, the existence of a prior relationship between the broadcaster and the named individual is not an essential criterion.

vi) Discussing the matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

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.

Standard 8 Programme Information

Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.

Broadcaster’s Response to the Complainant

[13] Noting that neither Dr Madlener nor his wife had made a formal complaint and referring to the public’s right to know in s.14 of the New Zealand Bill of Rights Act 1990, TVNZ said that there was a “genuine public interest” in bringing Dr Madlener’s situation to the attention of the New Zealand public.

[14] In regard to privacy, TVNZ considered that the facts of Dr Madlener’s offending had not become private again, under Privacy Principle (ii).  Further, Dr Madlener remained a fugitive and was subject to arrest on his return to the United States.  In view of the extent of Dr Madlener’s offending, TVNZ added, it did not think that the offending would ever become a private fact.

[15] Moreover, TVNZ referred to Privacy Principle (vi) and argued that Dr Madlener’s past and his presence in New Zealand were clearly matters of public interest, given the scale of the methamphetamine operation.  As further evidence of ongoing public interest, TVNZ referred to a Sunday newspaper article in 2003.  It did not uphold the Standard 3 aspect of the complaint in regard to Dr Madlener.

[16] As for the complaint that the broadcast breached the privacy of Dr Madlener’s wife, Dr Kathrine Davis, TVNZ maintained that the mention of Dr Madlener in itself identified his wife.  It wrote:

It is a fact of life that close family members of people convicted of serious criminal offences are identifiable when references are made to public facts about such criminal offending.  The [complaints] committee did not believe that references to Dr Kathrine Davis breached her privacy.

[17] As for the requirement for balance in Standard 4, TVNZ said that reasonable efforts had been made and reasonable opportunities had been given to Dr Madlener to present his point of view.  As the item showed, he had declined to do so.  This did not mean that the story would be abandoned, TVNZ said.

[18] Turning to the requirement for accuracy in Standard 5, TVNZ noted that Mr Steadman had not provided a detailed complaint.  Nevertheless, TVNZ provided more details of Dr Madlener’s methamphetamine manufacturing business.  It had taken place in three sites and evidence was found of careful planning and considerable financial expenditure.  TVNZ said that it had been advised by US attorney Alan Moye, contrary to the claim in the complaint, that Dr Madlener had answered only one subpoena, and had then not appeared at the retrial.  Further, Dr Madlener had not advised the Drug Enforcement Agency (DEA) that his life had been threatened.  As for the Kruger Rands, TVNZ described them as a “bizarre and unusual” aspect of the story, but it did not agree that it implied drug money.  TVNZ added:

The [complaints] committee noted that it had to be remembered that any claims of truth and accuracy by Dr Madlener had to be tempered with the understanding that Dr Madlener had lied to the Immigration Service about his identity, had lied to TVNZ in 1994 from behind his welding mask, and – according to law enforcement agencies in the United States – had lied to them about where his gold supplies came from.

[19] TVNZ declined to uphold the Standard 5 (accuracy) aspect of the complaint.

[20] As for the complaint that the item was unfair, TVNZ reiterated that Dr Madlener had been given, but had declined, the opportunity to present his side of the story.  Accordingly, TVNZ was not aware of any misrepresentation and it declined to uphold the Standard 6 aspect of the complaint.

[21] TVNZ did not accept that Standard 8 was relevant and it did not see how the item had deceived or disadvantaged viewers.

[22] TVNZ did not dispute Mr Steadman’s comments regarding the skills of Dr Madlener and his wife as veterinarians, or their generosity as neighbours, or that they now led exemplary lives.  Nevertheless, it pointed out, Dr Madlener had a criminal past and was now a fugitive, and:

… a subject of genuine public interest and concern to New Zealand viewers, especially at a time when interest is so keen in New Zealand’s immigration procedures and policies.

Referral to Broadcasting Standards Authority

[23] Dissatisfied with TVNZ’s response, Mr Steadman referred his complaint to the Broadcasting Standards Authority under section 8(1)(a) of the Broadcasting Act 1989.  The letter of referral was accompanied by a lengthy letter to TVNZ, together with a number of attachments, in which he replied in detail to TVNZ’s response to his formal complaint.  Mr Steadman reiterated his complaint that the broadcast breached Standards 3, 4, 5 and 6.  He accepted TVNZ’s argument that Standard 8 was not relevant.

[24] Mr Steadman stated there was no justification to include Dr Davis as she had not met her husband at the time of his offending.  He acknowledged that Dr Madlener had committed “a one-off felony” but asked whether he deserved “double jeopardy trials by media” for the rest of his life. The programme had flouted broadcasting standards, he said.

[25] The details of the referral were contained in the letter addressed to TVNZ.  Mr Steadman asked why the programme makers had not approached Dr Madlener’s attorney, the public prosecutor, or the probation officer who were familiar with the case and who would have been available for interview.  He considered that the omission of these “knowledgeable sources” was negligent.

[26] Mr Steadman made the following points in support of the privacy complaint:

• Dr Madlener was wearing a welding mask as he was welding when approached by two men who had a concealed camera on the first occasion (in 1993).  No attempt had been made earlier to make an appointment.
• Dr Madlener was spray painting when approached on the second occasion, and the journalist did not follow up Dr Madlener’s suggestion to make an appointment.
• The “gratuitous” publication of Dr Davis’ business activities damaged a business she had built up over the years and a selection of the correspondence she had subsequently received was attached.  This had occurred, Mr Steadman wrote, because TVNZ had flouted the rules designed to protect her privacy.
• It was “highly offensive” to refer to an offence which was committed 20 years previously for which the final sentence was 3 months imprisonment and 1000 hours community work, and for which there was no evidence of any likelihood of re-offending.

[27] As for the balance requirement, Mr Steadman made the following points:

• Questioning a man as to his name while he was wearing a welding mask and who, at the time, was in fear for his life, did not amount to a serious attempt to give him an opportunity to comment.
• The recent efforts to obtain comment did not amount to either reasonable efforts or reasonable opportunities.

[28] As for accuracy and unfairness, Mr Steadman wrote:

• It was questionable as to whether Dr Madlener remained a “fugitive” as he had satisfied in full the demands of the US legal system before his departure.  There were now two indictments against him in the US, both of which were filed after he had arrived in New Zealand and he had not received a subpoena for either of them. 
• The “evidence” presented in the programme that Dr Madlener’s crimes were “heinous” was false.
• Dr Madlener accepted that the methamphetamine manufacturing business he established was, at the time, sophisticated and large.  However, by today’s standards, Mr Steadman said the process was crude and, contrary to the impression given, Dr Madlener was the “technical chemist intermediary.”  The two masterminds, one in Seattle and one in Georgia, were sentenced to nine years and life imprisonment respectively.  Mr Steadman wrote:
  • Dramatically dubbing Tom “the Speed King”, in light of the criminal activity and sentences handed down to these men who hardly warrant mention in your programme, is just another example of the lengths you will go to hyperbolise your agenda.
• The crime for which Dr Madlener was convicted was less serious, and this was reflected in the sentences passed on the five defendants charged with the manufacturing side of the operation.  Dr Madlener received two years imprisonment and 300 hours community service, later reduced to three months and 1000 hours.  The owner of the property received 1 year imprisonment and the other three defendants were not imprisoned.
• It was inaccurate not to report that “Speed” at the time was “somewhat on a par with cannabis,” rather than something akin to P.  It was used at the time for studying, long-distance driving and slimming, and only later did it evolve into the “dangerous threat” that it is today. 
• The programme displayed “scientific ignorance” when it claimed that methamphetamine manufactured by Dr Madlener was of 99-100% pure and therefore equivalent to today’s P.  In fact, the DEA analysis at the time showed a lower degree of purity and given the different processes, less than 40% the strength of P.

[29] Returning to the reference to Dr Davis, Mr Steadman sought an elaboration as to why the “very mention of Dr Tom Madlener identifies his wife.”  Further, he questioned the need of including a photograph of her and one of her main products, and the need for a reference to her main activity. 

[30] Continuing to document the inaccuracies and misrepresentations contained in the item, Mr Steadman attached two lists made by Dr Madlener of its alleged mistakes.

[31] As for the number of subpoenas to which Dr Madlener responded, Mr Steadman maintained that Dr Madlener had answered six, and said he could supply an affidavit from Dr Madlener’s US attorney in support.

[32] Moreover, he wrote, it was incorrect to suggest that serious criminals had been allowed to escape justice because Dr Madlener had failed to give evidence.  When Dr Madlener had been sentenced, Mr Steadman reported that the prosecutor had said that Dr Madlener had voluntarily given thorough information and, consequently, a lengthy jail term was not sought.

[33] TVNZ was correct in stating that Dr Madlener had not advised the DEA that he was in danger.  Rather, Mr Steadman remarked, the DEA had informed Dr Madlener that he was in danger.

[34] Mr Steadman argued that the programme implied that the Kruger Rands were “the illegal fruits of drug sales.”  That implication was made although the programme makers knew that it was incorrect.

[35] Focusing on the requirement for fairness in Standard 6, Mr Steadman did not accept TVNZ’s contention that Dr Madlener had been given “every” opportunity to present his side of the story.  He also noted that the programme makers had seen copies of the court records of the cases in which Dr Madlener had been involved.

[36] Mr Steadman supplied a statement from Dr Madlener in which he explained why he had responded with caution when approached by two or three men at his farm some 10 years previously, while welding some machinery.  The name he gave was that of the previous owners of the farm as a number of people had asked about them.

[37] Mr Steadman also expressed concern that TVNZ had not responded to his complaint that the broadcast, involving the same production team as the earlier item broadcast in 1994, had been “motivated by malice”.

[38] The second attachment from Dr Madlener included 28 points in the item which he contended were false, and a list of 27 matters headed:

I have examined a series of letters, affidavits and court documents either provided to, or readily available to, TVNZ and am able to make the following statements regarding facts which appear to contradict the information presented as fact in the programme.  The documents reviewed are easily available to any interested party.

Broadcaster’s Response to the Authority

[39] TVNZ pointed out that the attachments headed “Factual errors” and “what the viewer should believe” had not earlier been made available to its Complaints Committee despite a specific request for such material.  Given these circumstances, TVNZ asked the Authority to decline to accept the material now provided.

[40] TVNZ also apologised to the complainant if he felt that any comments about his friend seemed to him “unduly harsh or painful.”

[41] Acknowledging that the documentary would have been enhanced had either or both Dr Madlener and his wife agreed to be interviewed, TVNZ said he was shown on camera being given an opportunity.  That request, TVNZ stated, was followed by three separate calls to the Madlener/Davis home and in each case a message had been left on the answer-phone.  However, there had been no response.

[42] TVNZ maintained that, as required by Standard 4, reasonable efforts were made and reasonable opportunities were given to present all significant points of view.

[43] Had Dr Madlener chosen to give a response, TVNZ pointed out that, in assessing his remarks, weight would have had to be given to the fact that he had “lied” to the Immigration Service and TVNZ about his identity, and that US law enforcement figures said he had lied to them concerning details of the case.

[44] As for the argument that Dr Madlener’s criminal offending had become private again pursuant to Privacy Principle (ii), TVNZ disagreed and referred again to the active arrest warrant in the US.  It also mentioned that the criminal activity, in view of its extent and sophistication, could not be dismissed as a “youthful mistake.”

[45] As for the US Attorney Mr Steadman suggested could have been interviewed, TVNZ said he had originally agreed but was unavailable at the last minute.  US Attorney Jim Shively had instead handled the interview, and TVNZ noted his comments that Dr Madlener did not adequately fulfil his side of the bargain.  The programme included an interview with the then Minister of Immigration in New Zealand, Hon Lianne Dalziel, who felt that Dr Madlener “had been incredibly fortunate” and that “loopholes in the law” which allowed him to stay ought to be reviewed.

[46] In regard to the complaint that Dr Madlener was at risk, TVNZ repeated that an agent of the Drug Enforcement Administration (Bob Dreisbach), who was interviewed for the item, had not been made aware that Dr Madlener felt his life was at risk. 

[47] Observing that the issue was not directly relevant, TVNZ responded to the concern raised in the complaint about the programme’s producer (Brent Fraser).  Mr Fraser, then a breeder of horses, recalled being asked by a riding instructor to help Dr Madlener in his dealings with the Immigration Service.  Mr Fraser recalled agreeing to do so.  However, TVNZ added, after reading the papers, Mr Fraser had realised that he could not help.

[48] TVNZ contended that the complainant’s concerns about the programme’s producer were not relevant to the complaint. It then provided brief responses to the 28 points raised in the paper “what the viewer should believe” and said it would answer any specific questions which the Authority might have.

Complainant’s Final Comment

[49] Mr Steadman stated that he had provided the detailed lists prepared by Dr Madlener to counter TVNZ’s claim that he was unable to detail the alleged inaccuracies and, accordingly, the complaint was unsubstantiated.  He noted that the Authority might be required to ignore the material, observing that TVNZ’s request to take that course amounted to the suppression of evidence.

[50] As for TVNZ’s comment that Dr Madlener had declined to be interviewed, Mr Steadman repeated that Dr Madlener was fearful for his life when approached on the first occasion, and busy spray painting when approached on the second.  As for the messages left on the phone, he said that Dr Davis had advised she had deleted one message on her personal business line upon her return to New Zealand after a three-week trip as there was no indication that another programme was being prepared and she did not want to trouble her husband “with more pesterings”.

[51] As the legal issues involving Dr Madlener were well documented, Mr Steadman did not agree that the programme would have been enhanced had Drs Madlener and Davis agreed to an interview.

[52] As for the questions about Dr Madlener’s previous dishonesty, Mr Steadman said the only occasion of deviousness of which he was aware occurred when Dr Madlener used a false passport while fleeing for his life. 

[53] Mr Steadman understood the arrest warrant in the USA to apply either to the passport offence or to the failure of Dr Madlener to attend a court case of which he was not aware.  They were offences, he argued, which had “long passed” into the private domain.

[54] Turning to the documents on which the programme was based, Mr Steadman said that he had read them and it was clear that Dr Madlener, had he not completed the plea bargain, would have had the charges reinstated.  As Dr Madlener had fulfilled his obligations, Mr Steadman continued, the charges were not reinstated and, in fact, he had been allowed to terminate his probationary period early.

[55] As for the danger to Dr Madlener’s life, Mr Steadman said that it had been dealt with at length in the case heard in the High Court in New Zealand, which the programme’s producer had attended.  Justice Tipping, he wrote, was satisfied that there was a very real danger and assertions to the contrary by TVNZ were “ridiculous.”

[56] Attached to his letter, Mr Steadman provided:

• an amended list of factual errors with page numbers from a transcript of the item included
• two folders of documents relevant to the case which, while not exhaustive, provided a reference to the factual material contained in the submission.

[57] TVNZ, he contended, had not answered the following matters raised in the original complaint:

• “Why did Fraser choose to air Kathrine’s business activity on this programme and thus provide a route into her private life?
• Why is there no explanation for the deliberate, or grossly incompetent, false linkage of Madlener with the production of P?
• Why did the producers choose to disregard the court records on this case in preference for hearsay?
• Why have they not given a reply to my concerns about the inaccuracy of their portrayal of whether or not Madlener answered all subpoenas and discharged all his obligations to the USA in regards to his sentencing over this crime?
• Why have they chosen to portray him as the Speed King when they knew very well he was only a courtier?
• Why did they deliberately give the false impression about the source of the Krugerrands?”

Further Correspondence

[58] Having been through the complainant’s final comment and the accompanying 300 pages of material, TVNZ advised that it had little to add.  It emphasised its belief that the Authority should confine its determination to the material contained in the initial formal complaint.  It repeated that it had asked for the material now provided by the complainant, before its determination of the formal complaint, but had not received it at that time.

[59] TVNZ also noted:

• The extra material was not related to any specific broadcasting standard.
• Many of the documents referred to the original case against Dr Madlener in the US, rather than to specifics dealt with in the documentary.
• Much of the material related to the programme broadcast in 1994, rather than the one screened in 2004.
• Mr Steadman’s response to TVNZ’s letter was accompanied by a letter from Dr Kathrine Davis.

[60] In response to TVNZ’s points noted in paragraph [59] above, Mr Steadman wrote:

Was it necessary to follow an “extremely bureaucratic approach” of footnoting each paragraph with a broadcasting standard?

[61] In view of the emphasis TVNZ had given to its attempts to obtain Dr Madlener’s contribution, to imply now that the legal submissions were not worthy of consideration was strange.

[62] Many of the documents supplied (more than 70%) were comments from judges and prosecuting counsel and such material could not be ignored in the interests of fairness and balance.

[63] Noting that he had not seen the 1994 broadcast, Mr Steadman questioned whether it was relevant to his current complaint.

[64] In her letter, Dr Davis recalled that she had spoken to the programme’s producer at some length on the telephone in 1991 when her husband had been arrested in New Zealand in regard to his immigration status.  The discussion, she said, had also dealt with horses and dietary supplements and the producer had been sent, at his request, samples of some products.  The item, she wrote had “without consultation or permission” discussed her, and included footage of her and her products. 

Authority’s Determination

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

[66] In his initial complaint to TVNZ, Mr Steadman advised that he had spoken to Dr Madlener who had voiced the view that the programme contained numerous inaccuracies.  When asked by TVNZ to detail them, Mr Steadman stated that his complaint was sufficient for TVNZ to “chew on”.

[67] Dr Madlener’s list of 27 “factual errors” was included among the papers when the complaint was referred to the Authority.  It was accompanied by another paper also prepared by Dr Madlener, which was entitled “Speed King - What the viewer should believe” and recorded 28 points. 

[68] The Authority’s statutory task is to investigate and review a broadcaster’s decision.  As the material was not made available to the broadcaster at the outset, despite the specific request, the Authority agrees with TVNZ that it should not take either of these lists into account in its deliberations.

[69] In his final comment, Mr Steadman made available two folders of documents that provide some of the background to Dr Madlener’s experiences through the judicial and administrative systems in both the United States and New Zealand.  A copy of this material was provided to TVNZ.  The Authority has read the material contained in these folders and, in view of TVNZ’s interest in Dr Madlener over the years and the references to copious written material in the programme, it accepts that TVNZ was aware of the information contained in the folders before the programme was broadcast. 

[70] Having examined the material, the Authority also considers that there is no evidence to justify any allegation of improper conduct by the people involved in the production and presentation of the item.

Background

[71] The Authority begins its determination of the complaint by reviewing the matters that were covered in the programme.  The principal theme was how mistakes by the New Zealand Immigration Service led to a fugitive from the American justice system being allowed to stay in New Zealand despite the fact that he had been convicted of serious drug charges and had entered the country on a false passport. 

[72] In presenting the story, the item reported that Dr Tom Madlener had been convicted in the United States of manufacturing methamphetamine, some 20 years previously, on a scale and with a degree of sophistication that had not been encountered before.  The item recounted Dr Madlener’s progress through the court system in the United States, his plea bargain and imprisonment.  It was reported that an arrest warrant had been issued in the United States for Dr Madlener as he had not complied with a condition of the plea bargain.  However, because of what the item described as three “important mistakes” by the New Zealand Immigration Service, including a ruling from the High Court in 1996 on its conduct, the Immigration Service “gave up” and granted Dr Madlener residency in October 2001.  The item also showed him being approached on two occasions for an interview at his home.  On the first occasion, he denied that he was Dr Madlener and, on the second, he refused to answer questions at that time and asked the reporter to make an appointment. 

[73] Mr Steadman complained that the programme breached the privacy of Drs Madlener and Davis, and was inaccurate, unbalanced and unfair. 

Privacy

[74] The Authority does not agree with Mr Steadman that information in the item about Dr Madlener’s experiences with the judicial system in the United States breached his privacy.  It notes that this information was summarised by Justice Tipping when Dr Madlener brought his case against the Immigration Service in 1996 (CP No 263/91, Christchurch HC, 31 July 1996).  It is therefore a matter of public record.  Moreover, the Authority agrees with TVNZ that the information about criminal offending had not become private again given, first, the scale of the criminal behaviour in which Dr Madlener was involved, and secondly, the ongoing immigration issue.  The interview in the item with the then Minister of Immigration in early 2004 clearly shows that the legal issues involved in Dr Madlener’s case were still alive.

[75] The Authority also decides that the item did not breach the privacy of Dr Kathrine Davis.  It notes that Dr Davis did not know Dr Madlener when he was involved in the manufacture of methamphetamine.  It also notes TVNZ’s response that “close family members of people convicted of serious criminal offences are identifiable when references are made public about such criminal offending”.  However, the Authority considers that neither of these contentions is relevant to the current situation.

[76] The Authority points out that the footage of Dr Davis contained in the item was taken in a public place and the information given was sourced from her website.  The Authority does not consider Dr Davis’ marriage to be a private fact, and as no private facts about Dr Davis were disclosed, the Authority concludes that the item’s references to Dr Davis did not breach her privacy.

Balance

[77] Standard 4 of the Television Code requires that reasonable efforts are made or reasonable opportunities are given to present significant points of view in programmes that discuss “controversial issues of public importance”.  The issue in this case was how mistakes by the New Zealand Immigration Service had led to Dr Madlener, a convicted drug manufacturer who had entered the country on a false passport and was now a fugitive from the United States justice system, being allowed to stay in New Zealand.   The Authority is of the view that this was a controversial issue of public importance.

[78] The reporter initially approached Dr Madlener for an interview for the current programme while he was spray painting, and he declined to answer the questions posed.  He invited the reporter to telephone and make an appointment.  TVNZ said the reporter did so on three occasions and left messages. 

[79] Mr Steadman initially denied that TVNZ had followed up Dr Madlener’s invitation, but later conceded that Dr Davis had received one message but had not passed it on as she did not want her husband to be pestered further.  The Authority considers that TVNZ’s efforts amounted to sufficient efforts on TVNZ’s part to obtain Dr Madlener’s response.

[80] Nevertheless, TVNZ’s failure to obtain Dr Madlener’s response does not relieve it of the responsibility of seeking balance from other sources, and Mr Steadman asked why the item did not contain interviews with Dr Madlener’s attorney in the United States, or his probation officer there.  As the interviews in the United States would not have addressed the controversial issue covered in the item  - the NZ Immigration Service processes - the Authority is satisfied that the absence of these interviews does not affect the question of balance.

Accuracy

[81] There were four alleged inaccuracies raised in Mr Steadman’s initial complaint and they are the matters which the Authority has determined.  In reaching its determination on each of these points the Authority has taken into account the elaborations contained in the referral and in the two volumes of papers provided. 

Scale of methamphetamine operation and seriousness of offending

[81] On a number of occasions in the broadcast, the large scale of the methamphetamine manufacturing operation was highlighted. For example, “It’s estimated the former vet had made as much as $6 million from this business”, and “He was the single largest manufacturer of methamphetamine that had ever been documented by DEA to that point”.

[82] The Authority notes that qualifications were made at various times in the item.  The programme used the words “estimated” and “at that time” on several occasions, while also revealing that the extent of the business was considerable.  Mr Steadman acknowledged that the operation was substantial and sophisticated at that time, but he claimed that its extent had been exaggerated.  Taking into account the scale of the operation as revealed by the footage shown in the item and the prison sentences imposed on the main participants, the Authority considers that the item was not inaccurate in its description of the scale of the manufacturing operation.

[83] The Authority also finds that the item was not inaccurate to link methamphetamine with P.  It notes that P is methamphetamine of increased purity.  It further notes that the programme did not make claims as to the purity of the methamphetamine produced by Dr Madlener, which his United States lawyer advised was between 59 to 77 percent pure.  The Authority acknowledges that concerns about methamphetamine  have increased in recent years and while linking methamphetamine use in the 1980s to the problems now associated with P might have involved an element of sensationalism, the Authority finds that it did not amount to an inaccuracy. 

Subpoenas

[84] Mr Steadman complained that the item did not record that Dr Madlener had answered six subpoenas as part of his plea bargain, and had implied that he had not answered any.  Mr Steadman noted that Dr Madlener had turned up for the trial of Donald Miles (a major player) and the warrant for his arrest had been issued when he had failed to appear at the appeal.  According to Dr Madlener’s lawyer in the United States, he had not known he was required to testify at the appeal when he had fled the country, about a year before the arrest warrant was issued.

[85] The Authority concludes that the programme was not inaccurate in the way it dealt with the question of the subpoenas.  It did not assert that Dr Madlener had not responded to any of the subpoenas issued to him.  It did say, correctly, that a warrant for his arrest was issued when he failed to appear on a specific occasion.  It also said correctly that he had fled the United States and had since declined to return.

[86] While the programme was ambiguous as to the extent to which Dr Madlener had responded to any subpoenas issued to him, it did not state that he had failed to respond to any of them.  Accordingly, the Authority does not consider that the programme’s failure to acknowledge that Dr Madlener answered at least one subpoena amounted to an inaccuracy. 

Threat to Life

[87 ]The Authority considers, contrary to the complainant, that the item reported that Dr Madlener had a real concern that his life was threatened.  For example, the programme cited Justice Tipping’s comment that the New Zealand Immigration Service had not given sufficient weight to Dr Madlener’s argument that he might “be murdered if sent home”. Accordingly, the Authority does not uphold this aspect of the complaint.

Kruger Rands

[88] The item began with a tale of some Kruger Rands that had been discovered hidden in the dashboard of a car sold by Dr Madlener.  It later reported that he had smuggled gold in a car in the 1980s by the same method.  Mr Steadman has argued that the item implied the Kruger Rands found in New Zealand were purchased with drug money.  However, he wrote, they had been bought by Dr Madlener from the proceeds of the sale of his veterinary practice in Seattle.

[89] The Authority does not agree with the inference drawn by Mr Steadman.  It considers that the item, by its reference to the Kruger Rands hidden in the car, implied that Dr Madlener was sufficiently wealthy that he had overlooked, if not forgotten, the hidden money.  It declines to uphold this matter as a breach of the accuracy standard.

[90] The Authority has dealt with this aspect of the complaint as an alleged inaccuracy.  Although Mr Steadman initially contended that it also involved a question of balance, the matter does not relate to the controversial issue of public importance that the Authority has acknowledged was raised in the programme.

Fairness

[91] Mr Steadman argued that the following aspects of the programme were unfair and in breach of Standard 6:

• the alleged inaccuracies
• Dr Madlener was not given sufficient opportunity to present his view, and the programme should have included interviews with his US attorney or his probation officer
• the programme’s references to Dr Davis.

[92] In view of the copious material that it has perused and the absence of any inaccuracies on the matters raised, the Authority concludes that the item had a basis for raising the issues addressed. It finds that the programme was not unfair to Dr Madlener in its discussion about the scale of the drug making, the threats, or the subpoenas.

[93] As discussed in paragraphs [75]–[77], the Authority also finds that Dr Madlener was given reasonable opportunities to present his point of view. The Authority notes that Dr Madlener declined to respond to the reporter’s questions and thus passed up the opportunity to respond to the issues raised. 

[94] Similarly, the Authority does not find that the item was unfair in that it did not include interviews with Dr Madlener’s attorney in the US or his former probation officer.  The item primarily focused on the mistakes made within the New Zealand Immigration Service that allowed Dr Madlener to settle in New Zealand.  In these circumstances, a detailed examination of Dr Madlener’s progress through the US justice system was not required.  Nevertheless, as a necessary part of that story, his criminal offending in the United States was explained.  Although dramatised and at times ambiguous, the Authority has held that the story was not inaccurate.  Accordingly, taking the requirement for fairness into account, the Authority considers that any information from his attorney or probation officer was not necessary to the issues addressed.  

[95] Mr Steadman contended that the programme was also unfair to Dr Davis as it identified her and referred to her current business activities.  The information made available to the Authority confirms the point made in the item that Dr Davis actively supported her husband in his encounters with the New Zealand Immigration Service.

[96] Recalling the item’s focus on what it described as the “screw up” by the NZ Immigration Service, and taking into account Dr Davis’ support for her husband in his application to the Minister of Immigration for leniency in 1990, the Authority finds that the item’s references to Dr Davis and her business were not unfair.

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

Signed for and on behalf of the Authority

Tapu Misa
Member
11 June 2005

Appendix

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

1. Hugh Steadman’s formal complaint to Television New Zealand Ltd – 17 September 2004
2. TVNZ’s initial response to Mr Steadman seeking further information – 22 September 2004
3. Mr Steadman’s email response to TVNZ – 24 September 2004
4. TVNZ’s response to the formal complaint – 12 October 2004
5. Mr Steadman’s referral to the Broadcasting Standards Authority – 26 October 2004
6. Mr Steadman’s response to TVNZ (plus attachments) – 26 October 2004
7. TVNZ’s Response to the Authority – 16 November 2004
8. Mr Steadman’s final comment (plus attachments) – 30 November 2004
9. TVNZ’s response to the attachments – 19 January 2005
10. Mr Steadman’s second final comment – 9 February 2005