BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – complainant was convicted of raping and abusing his daughter and sentenced to 14 years imprisonment – subsequent legal dispute between them about ownership of painting – daughter withdrew from proceedings which were resolved in complainant’s favour – item reported that complainant while in prison had then brought private prosecution for fraud against daughter arising from dispute over painting – item reported that daughter unable to get legal aid for painting dispute and required to sell her house – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – item not unbalanced – not upheld

Standard 5 (accuracy) – item not inaccurate – not upheld

Standard 6 (fairness) – item not unfair – not upheld

The Authority declined to determine aspects of the complaint pursuant to section 11(b) of the Broadcasting Act 1989.

This headnote does not form part of the decision.

Broadcast

[1] In 2001, Ronald van der Plaat was convicted of raping and abusing his daughter, now Ms Tanjas Darke, and sentenced to 14 years imprisonment. Recent court action taken by Mr van der Plaat was covered in an item broadcast on Sunday on TV One at 7.30pm on 27 June 2004. The item included interviews with Ms Darke, her husband, and her mother, Charlotte Stravers, who had been divorced from her husband, the complainant, for some 30 years.

[2] After Mr van der Plaat was sentenced to imprisonment, a dispute arose between him and his daughter about the ownership of a painting by Lindauer. An action to resolve the dispute was apparently initiated by the Police. The ownership of the painting was resolved in Mr van der Plaat’s favour when his daughter later withdrew from the case. It was reported that Mr van der Plaat had then brought a private prosecution against his daughter alleging that she had committed fraud during the case about the dispute over the painting. The item reported that Mr van der Plaat was the informant in the prosecution, that his costs were being paid for by Mrs Stravers, and that Ms Darke was the defendant and was represented by a lawyer now acting pro bono (without charge). The District Court had dismissed the prosecution and, the item reported, Mr van der Plaat was now seeking judicial review of the District Court’s decision. The item also reported that Ms Darke had been unable to get legal aid and that she had sold her house to pay her legal costs.

Scope of Complaint

[3] Mr van der Plaat complained through his lawyer to Television New Zealand Ltd, the broadcaster, that the item was unbalanced, inaccurate and unfair. He listed a range of concerns.

[4] The Authority notes that Mr van der Plaat did not pursue an appeal against conviction, although he did appeal against his sentence. Nevertheless, it is clear from the correspondence that he considers that he was not guilty. Indeed, during the correspondence in regard to the present complaint, his lawyer stated explicitly that his client was “an innocent man who has wrongly been convicted”.

[5] In his referral to the Authority of his complaint, the complainant referred to eight issues that he considered amounted to a breach of broadcasting standards. The complainant’s concerns were as follows:

1. A statement that Ms Darke had to sell her house to pay legal bills.
2. The use made of an image of an abusive message.
3. The alleged administration of mandrax to Ms Darke by Mr van der Plaat and Ms Darke’s consequent heart condition.
4. The negative portrayal of the complainant’s character.
5. The editing of the interview with Mrs Charlotte Stravers (the complainant’s ex-wife and Ms Darke’s mother).
6. The failure to broadcast any of the recorded interview with the complainant’s lawyer.
7. The lack of comments in the programme contradicting Ms Darke’s account of the family history.
8. The portrayal of the disputes over ownership of a painting by Lindauer.

[6] Having viewed the item and examined the correspondence, the Authority concludes that a number of the above matters are a direct attempt on the part of Mr van der Plaat to re-litigate issues arising from his trial on the sexual offences against his daughter and do not give rise to issues of broadcasting standards. For this reason, the Authority declines to determine the following aspects of Mr van der Plaat’s complaint.

The use of an image of an abusive message

[7] Mr van der Plaat’s lawyer stated in his original complaint to TVNZ that:

The program repeated [Ms Darke’s] assertion that a restaurant business card, on which Ronald had written [abusive] messages, was presented to her.

[8] The Authority disagrees with the complainant’s assertion. The message received only a fleeting mention in the item; it simply showed a visual image of a message, superimposed over an image of Mr van der Plaat, and mentioned that the note was found on him at the time of his initial arrest in 1999. Nothing was mentioned about the use of the message during the trial or its significance in the case against Mr van der Plaat.

[9] For this reason the Authority does not need to further examine this issue and accordingly declines to determine this aspect of the complaint, under section 11(b) of the Broadcasting Act 1989.

The alleged administration of Mandrax

[10] Mr van der Plaat’s lawyer produced what he informed the Authority was a translation of a German medical report in respect of Ms Darke, which he stated refuted as “a medical fact” that her heart condition was not caused by the administration of Mandrax by her father. He noted that this evidence was not before the Court during Mr van der Plaat’s trial but now gave “very good cause to re-enter the discussion”.

[11] The Authority does not agree. If Mr van der Plaat has fresh evidence that throws doubt on his guilt, his recourse is through the Courts. He can have no legitimate expectation that a broadcaster, in a programme that does not attempt to examine the appropriateness or otherwise of his convictions, will discuss what is purported to be new evidence, or challenge findings made by a jury and endorsed by the Court of Appeal.

[12] Accordingly, the Authority declines to determine this aspect of the complaint under section 11(b) of the Broadcasting Act 1989.

The nature of Mr van der Plaat’s character

[13] Mr van der Plaat has asserted, through his lawyer, that there was information available portraying Mr van der Plaat as something other than the “monster” the item made him out to be, and that the failure to discuss this information made the item unfair and unbalanced. The Authority does not agree. Mr van der Plaat was convicted of horrendous crimes of sexual abuse against his own daughter. In discussing his convictions and subsequent continued legal pursuit of his daughter, the media is not obliged to include material that Mr van der Plaat considers portrays him in a favourable light. The Authority therefore declines to determine this aspect of the complaint under section 11(b) of the Broadcasting Act.

The lack of comments in the programme contradicting Ms Darke’s “side of the story”

[14] Ms Darke’s “side of the story” was accepted by a jury and indeed the Court of Appeal noted that the evidence against Mr van der Plaat was “overwhelming”. As the item was not an examination of the trial, TVNZ was under no obligation to re-litigate the facts presented at trial or to investigate the safety of the verdicts. That course of action was open to Mr van der Plaat, had he chosen to appeal his conviction, which he did not. Mr van der Plaat could have no expectation that TVNZ should seek to present evidence challenging the veracity of Ms Darke’s proven claims and the failure to do so does not amount to an issue of broadcasting standards. The Authority therefore declines to determine this aspect of the complaint under section 11(b) of the Broadcasting Act.

Standards

[15] In relation to the matters in the complaint that raised issues of broadcasting standards, TVNZ assessed them under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. They read:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Authority’s Determination

[16] 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 complaint without a formal hearing.

Portrayal of the proceedings to establish ownership of the painting

[17] One aspect of Mr van der Plaat’s complaint concerns the item’s portrayal of the proceedings under the Summary Proceedings Act, brought by the Police to establish ownership of a painting by Lindauer which both Mr van der Plaat and his daughter claimed as their own.

[18] Mr van der Plaat alleged that the item claimed that Ms Darke withdrew from the proceedings when the possibility arose that she could be cross-examined by him. He asserted that in fact the reason for Ms Darke’s withdrawal was because she had been asked to provide discovery of a critical piece of evidence, which she was unable to do. The implication clearly made was that Ms Darke withdrew when she realised she could not sustain her position in the proceedings. Counsel for Mr van der Plaat made further submissions that TVNZ misunderstood the Summary Proceedings Act proceedings and that Mr van der Plaat would not have cross-examined her in person, as he was represented by counsel.

[19] The Authority does not agree that the item breached broadcasting standards in this respect. The unambiguous overall theme of the item in relation to this issue was that Ms Darke withdrew from the proceedings as a result of the emotional upset that she was experiencing as a result of her ongoing forced legal dealings with her long-time abuser.

[20] In the view of the Authority, this approach taken by the item was appropriate, and mirrored the reason stated by Ms Darke to her lawyer when seeking to withdraw from those proceedings, further noted by Justice Fogarty in his decision ultimately dismissing the subsequent private prosecution brought by Mr van der Plaat¹. While Mr van der Plaat may choose to assume that Ms Darke’s motive for withdrawing was other than as she stated, this does not mean that the item breached standards of fairness, balance or accuracy in discussing in the manner it did her motives for withdrawal.

[21] For this reason, the Authority does not uphold this aspect of the complaint.

Selling house to pay legal bills

[22] The complainant submitted that the statement in the item that Ms Darke had been forced to sell her house to pay legal bills was incorrect, and was “highly provocative and extremely prejudicial”. He maintained that it was highly unlikely that Ms Darke would have incurred any legal costs in relation to the Summary Proceedings Act proceedings brought by the Police, as she was apparently being represented by Meredith Connell, who were also acting for the Police in relation to the matter. In relation to the private prosecution brought by the complainant, the item acknowledged that her lawyer was acting pro bono.

[23] TVNZ initially advised the complainant that Ms Darke had been charged “many tens of thousands of dollars” by lawyers, and later informed the Authority that she had been charged $22,000 by three lawyers. It also advised that she had been unsuccessful in obtaining legal aid, although since the broadcast her application had been granted on review.

[24] In view of the information provided by TVNZ, the Authority considers that the statement in the broadcast regarding the sale of the home did not breach the standards nominated by Mr van der Plaat. Mr van der Plaat has provided no evidence, other than conjecture, to support his assertion that Ms Darke had not incurred significant legal expenses. In light of the supporting information provided by TVNZ, the Authority has no basis on which to find that the statement was incorrect.

Interview with Mrs Charlotte Stravers

[25] A further aspect of Mr van der Plaat’s complaint was that TVNZ had manipulated the interview with Mrs Stravers, his ex-wife, in such a way that she would be seen “in the worst possible light”. TVNZ denied that this was the case, and noted that it had reported comments from Mrs Stravers directly relevant to the issues being canvassed by the programme, namely her disbelief of Ms Darke and the fact that she was accordingly paying for Mr van der Plaat’s ongoing legal actions. In response to TVNZ’s position, Mr van der Plaat made no submission of substance addressing in what way the interview had been manipulated or why this amounted to a breach of broadcasting standards.

[26] The Authority has been presented with no evidence to suggest that TVNZ acted inappropriately in its editing of the interview with Mrs Stravers. For the Authority to be justified in pursuing this matter further – such as by seeking further information about the unedited interview – it would need to at the very least be satisfied that there existed some basis for a prima facie concern. Given the vague nature of the allegations and the lack of supporting evidence, the Authority does not uphold this aspect of the complaint.

Interview with the complainant’s lawyer

[27] The final aspect of Mr van der Plaat’s complaint to be considered by the Authority was that the item failed to include any part of the interview conducted with his lawyer. As with the above matter, this aspect of the complaint was not supported with any argument as to why this constituted a breach of broadcasting standards, other than a bald assertion that it reflected the item’s “bias”. TVNZ responded that the interview with the lawyer was not included as it was less relevant than the interview with Mrs Stravers.

[28] The Authority considers that the decision not to include footage of the interview with the lawyer was a legitimate editorial decision and in the absence of any case of substance advanced by the complainant, it accordingly does not uphold this aspect of the complaint.

For the above reasons, the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 November 2004

Appendix

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

1. Ronald van der Plaat’s Complaint to Television New Zealand Ltd – 1 July 2004.
2. TVNZ’s initial response – 7 July 2004
3. Mr van der Plaat’s Second Complaint to TVNZ – 18 July 2004
4. TVNZ’s Response to he Complainant – 30 July 2004
5. Mr van der Plaat’s Referral to the BSA – 9 August 2004
6. TVNZ’s Response to the Authority (plus attachments) – 26 August 2004
7. Mr van der Plaat’s Final Comment – (received) 17 September 2004

¹See van der Plaat v Invercargill District Court & Darke, Invercargill High Court, CIV 2004-425-000165, 11 August 2004.