BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
"Trial and Error" – 20/20 – David Bain murder trial – Milton Weir defamation action against Joe Karam – Weir’s admission that Bain jury was misled – inadvertent mistake – not first time admitted – unfair, unbalanced, impartial to present otherwise

Findings
Standards G4 and G6 – impression given that first time mistake admitted – no evidence that mistake anything other then genuine – implication that Mr Weir might have intentionally misled jury – dramatic choice of language – interview with Assistant Commissioner of Police and reference to Police Complaints Authority’s report inadequate to provide balance/undo suggestion that mistake might have been intentional – uphold

Standards G4 and G6 – aspects of complaint regarding evidential significance of mistake not a matter for the Broadcasting Standards Authority – decline to determine

Standard G16 – standard concerned with the general viewing public – no uphold

Standard G20 – reasonable efforts made to include Mr Weir in programme – no uphold

Orders
Broadcast of statement
$1,500 costs to complainant

This headnote does not form part of the decision.

Summary

The conviction of David Bain for the murder of his parents and three siblings has been the subject of considerable public controversy. In a book entitled David and Goliath businessman and former All Black Joe Karam criticised the Police investigation and argued that the killer was in fact Robin Bain, David’s father.

Last year, Mr Milton Weir was one of two police officers to take a defamation action against Mr Karam. Mr Weir alleged it could be inferred from Mr Karam’s book that he had planted a spectacle lens at the murder scene.

The defamation action formed the basis for a programme entitled "Trial and Error" which was broadcast on 20/20 on TV3 on 20 August 2000. The programme discussed Mr Weir’s admission at the defamation proceedings that the Bain jury had been misled in respect of a spectacle lens in a photo exhibit.

Mr Weir complained to TV3 Network Services Ltd, the broadcaster, that the programme failed to broadcast evidence that his incorrect identification of a lens in one of the photos had been an inadvertent mistake rather than an attempt to deceive. He also complained that the programme incorrectly gave the impression that his evidence at the defamation proceedings was the first time he had acknowledged his mistake.

TV3 responded that the programme had achieved balance and fairness by including an interview with the Assistant Commissioner of Police and by referring to the Police Complaints Authority’s findings on the allegations in Mr Karam’s book. The broadcaster declined to uphold the complaint.

Dissatisfied with TV3’s response, Mr Weir referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaint that standards G4 and G6 were breached. It declines to uphold any other aspect of the complaint.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority has also referred to the Police Complaints Authority’s report which was widely referred to in the correspondence. The Authority determines this complaint without a formal hearing.

The Broadcast

The conviction of David Bain in 1995 for the murder of his parents and three siblings has been the subject of considerable public controversy. Businessman and former All Black Joe Karam has led the campaign for the release of David Bain. In his book David and Goliath, published in 1997, Mr Karam argued that the killer was in fact Robin Bain, David’s father. Mr Karam maintains that Robin Bain murdered his wife and three of his children while David was out delivering newspapers and then left a message on the computer exonerating David before committing suicide.

As a result of allegations of Police misconduct contained in the book, the Police and the Police Complaints Authority subsequently carried out a joint investigation into aspects of the Police investigation surrounding the arrest and prosecution of David Bain.

Last year, two of the police officers involved in the Bain case took a defamation action against Mr Karam. One of them, Mr Milton Weir, was the officer in charge of the murder scene but is now no longer a member of the Police. He alleged that it could be inferred from Mr Karam’s book that he had planted a spectacle lens at the murder scene.

The defamation proceedings formed the basis for a programme entitled "Trial and Error" which was broadcast on 20/20 on TV3 on 20 August 2000. The host of 20/20 introduced the programme as follows:

Tonight, a key admission from Police in the controversial Bain murder case. A Police officer involved in the investigation admits he misled the jury on a crucial part of the evidence during the murder trial six years ago, the trial that convicted David Bain of killing his family. It’s a revelation that’s given new hope to the man who’s staked his reputation on proving Bain’s innocence, former All Black Joe Karam. Karam says at the very least now, there should be a retrial.

The programme went on to comment that Mr Karam’s credibility would have been "shot" if he had lost the defamation action. The reporter said:

But this trial wouldn’t be the downfall of Joe Karam. Far from it. It would be the Police who would be exposed. The court would hear a startling admission from Police, significant enough to raise further doubt in the mind of Joe Karam whether David Bain got a fair trial. A Police officer would admit he misled the jury at the Bain murder trial. In other words he gave false evidence on a crucial part of the case. And it would also be revealed that on another vital facet of the investigation Police failed to tell the jury the full story.

The "false evidence on a crucial part of the case" to which the reporter referred, concerned Mr Weir’s incorrect identification of a spectacle lens in a photo shown to the jury at the murder trial. In one of two photo exhibits purporting to show a spectacle lens on David Bain’s brother’s bedroom floor, Mr Weir mistakenly identified what is known as a "specular effect" as a spectacle lens. The "specular effect" was a reflection created by a piece of plastic. At the murder trial, the prosecution associated the lens with a pair of spectacle frames missing a lens which were located in David Bain’s bedroom.

The programme showed footage of Mr Weir being cross-examined by Mr Karam’s lawyer during the defamation proceedings. In the footage shown, Mr Karam’s lawyer put it to Mr Weir:

Can I suggest there is little doubt that on that issue the jury was misled?

Mr Weir was shown responding:

The jury was misled as to where the lens was, yes.

The programme also included an interview with Assistant Commissioner Paul Fitzharris who commented on the serious consequences of an officer misleading a jury. Mr Fitzharris told the reporter:

It would be a disciplinary matter, or more importantly it would be a criminal matter. But I gather the set of circumstances about what you’re talking, is not like that. It is a matter where he may have said something where he was mistaken.

It was reported that the Police and the Police Complaints Authority had looked into the allegations in Mr Karam’s book and had found that "Milton Weir did nothing wrong". The reporter went on to say:

He’d somehow convinced himself he’d found the lens where he thought the photo showed it. But whether it was intentional or not, he had misled the jury, and now he was admitting that.

The programme then cut to footage of Victoria University law lecturer John Miller commenting that misleading the jury could lead to a miscarriage of justice. It then went on to canvass other aspects of the defamation proceedings.

Towards the end of the programme, it was reported that the police officers were fighting to overturn the defamation verdict. The reporter said their appeal was in court and that they had declined to speak to 20/20 until the case was over.

Finally, the reporter quoted Mr Karam as saying that "the latest admissions from Police" could make a difference to the Governor-General’s decision whether or not to grant a pardon to David Bain.

The Complaint

Through his lawyer, Milton Weir complained to TV3 Network Services Ltd, the broadcaster, that the programme breached broadcasting standards requiring TV3 to deal justly and fairly with him as a person referred to in the programme; to show balance, impartiality and fairness; and, to present significant but differing points of view.

In breaching those standards, the programme had caused unnecessary personal distress to Mr Weir and his family, and had damaged his reputation, the complainant said.

The complaint was grounded in four broad areas.

1.    Inadvertent mistake

Through his lawyer, Mr Weir complained that the programme was unfair and unjust by failing to broadcast evidence available to the programme makers that his incorrect identification of a lens in one of the photos had been an inadvertent mistake rather than an attempt to deceive. His lawyer wrote that, even though Mr Weir had felt unable to appear on the programme following legal advice that the matter was sub judice, TV3 had film footage from the defamation proceedings in which he explained how he came to mistakenly identify the "specular reflection" as a lens. His lawyer said he had given no evidence that the mistake was anything other than an innocent error. In addition, TV3 had access to the Police Complaints Authority’s report which also referred to his explanation for the mistaken identification of the lens in the photo, she said.

Mr Weir’s lawyer complained that the programme’s unfairness and lack of balance were compounded by the reporter’s comments which she said "invited the viewers to consider that the incorrect identification of the specular effect as the lens might well have not been innocent". In particular, she referred to the reporter’s comment that "[w]hether it was intentional or not, he had misled the jury, and now he was admitting it." According to Mr Weir’s lawyer, if the reporter was going to refer to the possibility that the mistake was in fact a lie, then fairness demanded that Mr Weir’s explanations be referred to in a balanced way. She referred again to TV3’s access to both the evidence Mr Weir had given at the defamation proceedings and to the Police Complaints Authority’s report. Mr Weir’s lawyer also noted that Mr Karam’s lawyer had not accused him in court of lying and she said it was improper of the programme to suggest he might have lied.

Mr Weir’s lawyer further argued that, if the programme had been fair to him, it would have described how difficult it had been even for professional photographers to identify the specular effect as not being the lens.

2.    Mistake previously acknowledged

Mr Weir’s lawyer complained that the programme incorrectly gave the impression that his evidence at the defamation proceedings were the first time he had acknowledged his mistake. She said the programme did so by using words such as "a revelation that gives new hope" and a "startling admission" by Police. In fact, Mr Weir had acknowledged his mistake several years earlier and had given a full statement to the Police Complaints Authority about the matter. If the programme had been fair to him, it would have included this information, she said.

3.    Significance of mistake

Mr Weir’s lawyer argued that the programme lacked balance and objectivity by suggesting that his mistake as to the exact location of the lens was of enormous significance. She pointed to the Police Complaints Authority’s findings to the contrary and to the Police Complaints Authority’s report, which explained why the mistake did not have enormous significance.

4.    Timing of the programme

Mr Weir’s lawyer suggested that TV3 should have rescheduled the programme until after the defamation proceedings were over. She said he had declined to appear following legal advice that the matter was sub judice, and nowhere did the programme indicate that he had requested it be rescheduled so that he could appear.

In addition, by stating "their appeal is in court this week", the programme gave the false impression that the defamation trial was over, she said. In fact, the case being heard the week of the broadcast was a continuation of the same High Court proceedings, not an appeal. In that respect, Mr Weir’s lawyer considered TV3 had breached the rules of sub judice by inviting comment and interpretation of the evidence.

Mr Weir’s lawyer also sought tapes of the programme’s promos, stating that Mr Weir understood the promos had suggested that he had "deceived" the jury. If that was the case, not only would there have been a breach of standards but those words would have been defamatory, she said.

Mr Weir’s lawyer concluded the complaint to TV3 by stating:

I suggest that 20/20 on the 20 August 2000 fell below the standards to which it would normally hope to aspire and lost the sense of impartiality that is so necessary when covering issues like this.

Those who seek to question whether justice is being done help to retain its integrity in the long term but, to do so, they must be vigilant to do justice themselves.

I invite you to give your urgent attention to Mr Weir’s complaint and ensure that he himself receives justice.

The Broadcaster’s Response

In its response to the complainant, TV3 advised that it had considered the complaint under standards G4, G6, G16 and G20 of the Television Code of Broadcasting Practice.

In the preparation and presentation of programmes, standards G4 and G6 require broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any programme.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

The other standards read:

G16  News, current affairs and documentaries should not be presented in such a way as to cause unnecessary panic, alarm or distress.

G20  No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, and this can be done only by judging every case on its merits.

Inadvertent mistake

Responding to the complainant’s contention that the programme "failed to broadcast evidence available to it that this was an inadvertent mistake rather than an attempt to deceive", TV3 stated that "Mr Weir’s side of the story" had been adequately communicated. Its standards committee had been left with the "clear impression that the officer’s mistake had been a genuine one," the broadcaster wrote. It pointed to the programme’s interview with Assistant Commissioner Paul Fitzharris, stating that Mr Fitzharris "says specifically that his [Weir’s] mistake was not intentional, quite the reverse." The broadcaster quoted from the interview with Mr Fitzharris, where Mr Fitzharris said: "It is a matter where he [Weir] may have said something where he was mistaken." In addition, TV3 argued that the reporter’s voice-over was "at pains to point out" that:

Police and the Police Complaints Authority have looked into the allegations in Karam's book and found Milton Weir did nothing wrong. He’d somehow convinced himself he’d found the lens where he thought the photo showed it.

In relation to the reporter’s comment that "[w]hether it was intentional or not, he had misled the jury, and now he was admitting it", TV3 responded that the interview with Mr Fitzharris and the reference to the findings of the Police and the Police Complaints Authority achieved balance and fairness. The relevant standards, G4, G6 and G20, had not been breached, the broadcaster said.

Mistake previously acknowledged

In relation to the complainant’s contention that the programme incorrectly gave the impression that his evidence at the defamation proceedings were the first time he had acknowledged his mistake, TV3 responded that the "balancing material" already referred to – the interview with Assistant Commissioner Paul Fitzharris and the voice-over stating that the Police and the Police Complaints Authority had found that "Weir did nothing wrong" – was sufficient to answer this point. The broadcaster asserted:

It is true that the admission of the mistake was made for the first time under oath. But it is equally clear that Mr Weir had already informed the PCA about the mistake for the Authority to have dealt with the matter.

Again, the broadcaster denied any standards had been breached.

Significance of mistake

The broadcaster answered the aspect of Mr Weir’s complaint that the programme misrepresented the significance of the mistake by stating that it did not intend, nor was it qualified, to judge the significance of where the lens was found in the overall context of the Bain case. TV3 stated: "The presentation of the PCA’s view about its significance [was] sufficient to balance any suggestion of its overwhelming importance." The relevant standards, G4, G6 and G20, had not been breached, the broadcaster said.

Timing of the programme

As to the aspect of the complaint that the matter was sub judice, the broadcaster said it understood the programme’s producer had contacted Mr Weir’s lawyer before the screening and had "clearly informed" her of his contrary legal advice that the matter was not sub judice. The broadcaster stated:

As such, there had been no breach of standards, it said.

This committee does not need to determine whether the matter was sub judice. Your point appears to be that the viewer was left with the impression that Mr Weir was reluctant to be involved. But the programme clearly stated that "they [the two Policemen] declined to speak until the case is over". This accurately reflects the position taken by the two Police officers, no doubt on your [Mr Weir’s lawyer’s] advice.

With regard to the programme’s promos, the broadcaster reassured the complainant that they did not refer to "deception".

Finally, TV3 addressed the point in the complainant’s letter that the programme had caused unnecessary personal distress to him and his family. It applied standard G20 and said it could find nothing in the programme which contravened the standard.

The Complainant’s Referral to the Authority

In his referral to the Authority, Mr Weir set out his involvement in the Bain case. He explained that, following publication of Mr Karam’s book, the Police Complaints Authority had conducted a detailed inquiry into numerous aspects of the investigation.

He wrote:

During this inquiry I was advised that a photograph I had pointed to while giving evidence at the murder trial, which I believed showed a spectacle lens, did not in fact show a lens. I was advised that what I believed was a spectacle lens was in fact a "specular effect". Following this advice I accepted, based on the forensic photography available to the PCA investigators, that I had made a mistake in respect of the (one) photograph while giving evidence.

Mr Weir stated that the result of the PCA investigation was released in the form of a public document to which TV3 had access. He said the PCA’s report showed that "at the time of indicating the photograph while giving evidence I honestly believed that it showed the spectacle lens. It was clearly indicated in the report that I accepted my mistake."

Mr Weir stated that the matter of the photograph purporting to show the lens had been the subject of considerable evidence on his part during the defamation proceedings. It had been dealt with in evidence in chief, cross-examination and also in re-examination, all of which (except matters in chambers) had been filmed by TV3.

Mr Weir explained that two to three weeks before the 20/20 programme screened, the reporter had contacted him to ask if he would be prepared to take part in a programme he was making about the defamation case. Mr Weir wrote:

I advised that I would like to but I would need to contact my legal advisers beforehand as part of my case had yet to be completed.

He said his legal advisers had subsequently advised him that the matter was sub judice and that it would be unwise to participate in the programme. Mr Weir described how, when he relayed that information to the reporter, the reporter said to him, "there was no way I [Mr Weir] would speak to him after the programme had aired." According to Mr Weir, the inference was that he would be very unhappy with the programme. He stated:

In my view this was a clear indication that at no stage did TV3 have any intention of airing a balanced and fair programme.

Mr Weir requested the Broadcasting Standards Authority to investigate the complaints outlined in his lawyer’s original letter of complaint to TV3. He alleged that the broadcaster had failed to show balance, impartiality and fairness by failing to report that:

i) at the defamation hearing, during re-examination, when asked whether he had at any time
   intentionally misled the Bain murder trial jury in respect of the lens, he had replied:
   "Definitely not."

ii) during the Bain trial he had produced and referred to a second photograph of the lens in
    question "in situ prior to it being uplifted and secured as an exhibit."

He said there had never been any question as to the authenticity of his evidence in respect of the second photograph, and that this fact was covered in detail during his evidence in the defamation proceedings. He wrote:

Its omission in the TV3 20/20 programme would have left viewers with the clear impression that the only photograph produced to the jury showing the lens prior to it being uplifted and secured as an exhibit was the "questionable photograph".

He said this was not the case and TV3’s failure to report this information placed unfair emphasis on the "questionable" photograph and was "clear evidence" of the programme not being balanced.

When Mr Karam first sent the photo to Auckland University’s audio department "such was the nature of the ‘specular effect’" that even forensic photography experts were initially unable to determine whether or not the photograph showed a lens. He said the reporter had been made aware of this information prior to the programme being broadcast. It was also covered in Mr Karam’s cross-examination during the defamation hearing. In Mr Weir’s view, TV3’s failure to report this aspect of the evidence was unfair and compounded his view that "they knowingly screened an unbalanced programme." He said if the information had been reported, the average viewer would have had "considerably less trouble concluding that my mistake was an honest one."

Mr Weir submitted that if TV3 had been concerned with airing a balanced and fair programme it would have waited until the conclusion of the defamation proceedings at which time he would have been able to freely discuss all aspects of the case with the reporter and, as indicated, appear on the programme.

Mr Weir alleged that it was a "charade" for TV3 to attempt to rely on the interview in the programme with Assistant Commissioner Paul Fitzharris as "balancing [Mr Weir’s] interests". That interview did not go far enough to satisfy a fair and equitable representation of his side of the story, he said. At the time of the programme being screened he had been retired from the Police for well over a year, and had taken the defamation proceedings as a private citizen. Neither Mr Fitzharris nor the New Zealand Police (with the exception of the New Zealand Police Association) had played any part in the proceedings. Mr Weir stated:

Also, there was never any discussion between Mr Fitzharris and myself in respect of him making comments on my behalf for this programme, nor I’m sure, was that ever his intention.

The broadcaster’s response had clearly stated that the defamation action formed the subject matter of the programme. Mr Weir asked:

How then could comments made by a person who had no part in the defamation proceedings be relied on as adequately portraying my side of the story?

Finally, he confirmed that he accepted the broadcaster’s explanation regarding the promos.

The Broadcaster’s Response to the Authority

In its response to the Authority, the broadcaster advised that it had nothing to add to its original response to Mr Weir. However, it said Mr Weir had made a number of new points in his letter to the Authority which required a response.

The broadcaster stated that Mr Weir had been "afforded every possible opportunity to be interviewed." According to 20/20’s legal advice, the matter was no longer sub judice, the remaining legal matters being interlocutory and not matters of substance.

The broadcaster provided comments from the reporter on what it said was Mr Weir’s claim that the reporter had indicated Mr Weir would not be happy to speak to him after the programme aired. The reporter’s comments explained that he had approached Mr Weir twice for an interview. The reporter wrote:

I had told him I felt it was important to tell his side of the story, as I believed he had a story to tell. He agreed with me. I told him when we were planning to broadcast and that we were committed to that. I saw no legal impediments. The second time I spoke to Milton Weir he said he had decided on legal advice not to be interviewed. I accepted that but told him I thought it was a shame. Mr Weir indicated he would be willing to talk after the programme but I said that would be impractical for our purposes. We had only once chance to broadcast such a detailed story. I gave no indication of how the story would depict him, only that it would be to his benefit to be interviewed, which was self-evidently true. That shows no pre-determination on how the final story will turnout, simply an honest attempt to change his mind.

TV3 "hotly denied" any suggestion that the programme had been "tainted from the outset", and said any such suggestion was not borne out by the efforts made to include Mr Weir and his "side of the story" in the programme.

According to the reporter’s comments to the Authority, the programme made clear the point that Mr Weir’s mistake about the lens was genuine. The reporter said he had specifically referred to both the Police and the Police Complaints Authority having cleared Mr Weir of any wrong doing, and had said: "He’d somehow convinced himself he’d found the lens where he thought the photo showed it." The reporter wrote:

The point that he did not intentionally mislead the jury was established then and there, and I did not see the need to repeat the point by including Mr Weir’s answer to his lawyer on the point. If there had been any doubt still, I would’ve. But I believed the story clearly indicated he had not [intentionally] misled the jury.

In response to Mr Weir’s assertion that it was unfair not to refer to the second photograph, the reporter argued that the programme was about the remaining contentious issues in the Bain case. He said:

We did not mention the second photo because the way it was presented in court has not been questioned.

As to the difficult forensic nature of the "specular effect", the broadcaster considered the point was clearly made in the programme and clearly visible on screen.

Finally, the broadcaster asserted that, in the absence of comment from Mr Weir, "the best that 20/20 could do was seek comment from a Police spokesperson." The broadcaster considered it irrelevant that Mr Weir was no longer a member of the Police force when he took the defamation action, as it concerned events that took place when he was a member of the Police.

Mr Weir’s Final Comment

In his final comment to the Authority, Mr Weir wrote that he did not accept the broadcaster’s assertion that the matter was no longer sub judice. He said the programme should have made it clear to viewers that he had indicated a wish to be interviewed but, acting on the advice of his legal advisers, had declined because the matter was considered by them to be sub judice. He said:

I would not have had a problem with the programme if they had said this and then gone on to say that their own legal advisers considered that the matter was not sub judice. At least this aspect would then have been depicted in a balanced manner.

In relation to the reporter’s assertion that the reporter had never said he would not speak to Mr Weir after the programme, Mr Weir said there appeared to be some confusion about this aspect of his complaint. It was never his intention to imply that the reporter had indicated he would not be prepared to speak to Mr Weir after the programme, Mr Weir said. Rather, the reporter had said he was interested in a story on the effect of the Bain case on his life.

It was during this conversation that he made the comment about me not speaking to him after the programme had aired and I concluded that the reason for him making that comment was that the programme would not portray me in a good light.

Mr Weir said he "completely disagreed" with both the reporter and TV3’s standards committee when they asserted that the point about the genuine nature of his mistake had been clearly made in the programme. He wrote:

The "guts" of the programme related to the Bain jury being misled, intentionally or otherwise in relation to the lens, with some additional material in relation to the computer timing. TV3 had footage of me giving evidence during the defamation trial, under oath, where I clearly stated that I had not intentionally misled the jury. TV3 made the conscious decision not to show that footage (during my re-examination), but made the conscious decision to show the footage of me during cross-examination saying that the Bain jury would have been misled by my evidence in respect of the photograph.

My point is that in order for the programme to have been balanced, as asserted by TV3, then it had to be ‘all or nothing’. They had to either screen me giving evidence in relation to the possibility of the Bain jury being misled and my subsequent evidence of this not being deliberate, or not screen either portion of my evidence and refer to it in other ways.

In relation to the reporter’s assertion that it was unnecessary to refer to the second, correctly identified, photograph, Mr Weir said the reporter’s comments "made no sense at all and clearly demonstrate[d] his bias in respect of the case." Mr Weir noted that he had recently been advised that the reporter was a close relative of a private investigator who Mr Karam had employed to make inquiries into him and other Police officers involved in the Bain case. He suggested that if that relationship was correct it "could account for the programme’s lack of impartiality."

Concerning TV3’s assertion that balance had been provided by the interview with the Police spokesperson, Mr Weir reiterated that at the time of the defamation case, which was the subject of the programme, he was no longer a member of the Police force and he had taken the case as a civilian ex-member of the Police. He repeated that the Police spokesperson had "absolutely no part to play" in the defamation proceedings.

Finally, Mr Weir stated that he would appreciate the Authority paying close attention to the points made in his original correspondence, stating:

The Standards Committee response, predictably, does nothing to answer my points and is in parts blatantly wrong and misleading.

The Broadcaster’s Further Comment

In a further comment to the Authority, the broadcaster responded to Mr Weir’s suggestion that the reporter was a close relative of a private investigator employed by Mr Karam. TV3 confirmed that the reporter had a brother-in-law "who is as described." It stated:

However, [the reporter] and the Network strongly deny that he had any input into the programme.

The Authority’s Findings

Mr Weir complained that TV3 breached broadcasting standards requiring it to deal justly and fairly with him as a person referred to in the programme; to show balance, impartiality and fairness; and, to present significant but differing points of view. In breaching those standards, Mr Weir said the programme had caused unnecessary distress to him and his family, and had damaged his reputation.

The Authority considers this complaint under standards G4, G6, G16 and G20 of the Television Code of Broadcasting Practice.

Standards G4 and G6

In the Authority’s view, the programme failed to treat the complainant justly and fairly as required by standard G4. It also finds that the programme failed to demonstrate balance, impartiality and fairness as required by standard G6. The Authority considers that TV3 gave insufficient weight to the fact that Mr Weir had previously acknowledged his mistake. It also concludes that TV3 had no evidence to suggest Mr Weir’s mistake was anything other than genuine.

The Authority acknowledges that the programme included a statement from the Assistant Commissioner of Police to the effect that, in his understanding of the circumstances, Mr Weir "was mistaken." It acknowledges the programme reported that the Police and the Police Complaints Authority had looked into the allegations and had found Mr Weir "did nothing wrong". The Authority also acknowledges that the defamation proceedings were the first time Mr Weir had agreed, on oath, that the jury had been misled. However, in its view, the programme was put together in such a way as to create the overriding impression that Mr Weir had admitted his mistake for the first time at the defamation proceedings, and that he might well have intentionally misled the jury.

In large part, it did this by its choice of language. The programme opened with the announcement that there had been "a key admission" from the Police "on a crucial part of the evidence" and that this was "a revelation" that had given Mr Karam new hope. Further on, Mr Weir’s acknowledgment that the jury had been misled by his misidentification of a lens in one of the photos was categorised as a "startling admission" and, again, the evidence was referred to as being "crucial" to the case against David Bain. The Authority does not accept that the interview with the Assistant Commissioner of Police and the brief mention of the Police Complaints Authority’s findings were sufficient to counter the suggestion that Mr Weir had never before acknowledged his mistake.

In the Authority’s view, the programme failed to treat the complainant justly and fairly as required by standard G4. It also finds that the programme failed to demonstrate balance, impartiality and fairness as required by standard G6. The Authority considers that TV3 gave insufficient weight to the fact that Mr Weir had previously acknowledged his mistake. It also concludes that TV3 had no evidence to suggest Mr Weir’s mistake was anything other than genuine.

The Authority acknowledges that the programme included a statement from the Assistant Commissioner of Police to the effect that, in his understanding of the circumstances, Mr Weir "was mistaken." It acknowledges the programme reported that the Police and the Police Complaints Authority had looked into the allegations and had found Mr Weir "did nothing wrong". The Authority also acknowledges that the defamation proceedings were the first time Mr Weir had agreed, on oath, that the jury had been misled. However, in its view, the programme was put together in such a way as to create the overriding impression that Mr Weir had admitted his mistake for the first time at the defamation proceedings, and that he might well have intentionally misled the jury.

In large part, it did this by its choice of language. The programme opened with the announcement that there had been "a key admission" from the Police "on a crucial part of the evidence" and that this was "a revelation" that had given Mr Karam new hope. Further on, Mr Weir’s acknowledgment that the jury had been misled by his misidentification of a lens in one of the photos was categorised as a "startling admission" and, again, the evidence was referred to as being "crucial" to the case against David Bain. The Authority does not accept that the interview with the Assistant Commissioner of Police and the brief mention of the Police Complaints Authority’s findings were sufficient to counter the suggestion that Mr Weir had never before acknowledged his mistake.

In the Authority’s view, the aspect of the programme which most clearly breached the requirement for fairness was the reporter’s later comment to the effect that: "But whether it was intentional or not, he had misled the jury, and now he was admitting that." In its response to the Authority, TV3 argued that the reporter’s voice-over was "at pains to point out" that the Police and the Police Complaints Authority had "looked into the allegations in Karam’s book and had found Milton Weir did nothing wrong." While that may be so, in the Authority’s view any balancing effect achieved by those comments was immediately undone by the suggestion that, nonetheless, the mistake might have been intentional. Indeed, TV3 had before it evidence of Mr Weir’s re-examination at the defamation proceedings, as well as the Police Complaints Authority’s report, neither of which raised any question of his mistake being other than genuine. It also had before it evidence from the defamation proceedings of how difficult it had been, even for professional photographers, to identify the specular effect as a lens.

For the foregoing reasons, the Authority concludes that TV3 breached standards G4 and G6 in the programme "Trial and Error".

In relation to the aspect of the complaint that the programme lacked balance by suggesting that Mr Weir’s mistake as to the exact location of the lens was of enormous evidential significance, the Authority notes that it is in no position to adjudicate on matters of criminal evidence. Having already upheld a breach of standards G4 and G6 based on other aspects of the complaint, the Authority declines to determine against those standards the aspect of the complaint relating to the evidential significance of Mr Weir’s mistake.

It considers the arguments as to whether or not the defamation proceedings were sub judice when it deals with standard G20 below.

Standards G16 and G20

The Authority declines to uphold the complaint under standards G16 and G20.

In relation to standard G16, the Authority notes that this standard is concerned with the impact of broadcasting on the wider community when it requires broadcasters to avoid presenting news, current affairs and documentaries in such a way as to cause unnecessary panic, alarm or distress. The standard is not designed to protect people taking part in or referred to in any programme. Rather, standard G4 affords individual participants in programmes the right to be treated fairly and justly.

With regard to standard G20, the Authority is of the view that TV3 made a legitimate decision to go ahead with the broadcast, based on its legal advice that the outstanding matters were interlocutory and the proceedings were therefore not sub judice. The Authority believes Mr Weir was given an adequate opportunity to participate. He chose not to, based on his own legal advice. In the Authority’s view, although the broadcast was unfair to Mr Weir overall, TV3 did make reasonable efforts to include him in the programme. It finds the reporter’s comments that the police officers had declined to speak to 20/20 until the case was over, were adequate to meet the requirements of this standard.

For the reasons given, the Authority upholds the complaint that a broadcast by TV3 Network Services Ltd of an item on 20/20 on 20 August 2000 breached standards G4 and G6 of the Television Code of Broadcasting Practice.

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

Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. Accordingly, it invited the parties to make submissions on penalty.

In its submission, the broadcaster assured the Authority that the breach in relation to the reporter’s comment that "whether it was intentional or not, he had misled the jury, and now he was admitting that", had been unintentional. In its view, the phrase "whether or not" was "merely a journalistic convention" which was not intended to malign Mr Weir or treat him other than with strict impartiality.

The broadcaster wrote:

Accordingly, TV3 takes this opportunity to apologise to Mr Weir for any distress the programme caused him and his family.

It continued:

TV3 notes the Authority’s concerns about the way in which the 20/20 "Trial and Error" programme was put together and, once the final decision is released, these findings will be conveyed to relevant journalistic and production staff.

The broadcaster said it was proud of its 20/20 programme, which it considered to be a "responsible, hard-hitting, journalistic programme with a solid reputation." Neither TV3 Network Services Ltd nor the programme makers would "countenance the inclusion of any intentionally misleading material or practices which could undermine or tarnish that reputation."

In its view, the breaches identified were not "major breaches of the code" but rather a question of "infelicitous phraseology." Accordingly, the broadcaster submitted that no additional penalty, on top of the Authority’s decision to uphold the complaint as a breach of standards G4 and G6, was warranted.

In his submission, Mr Weir said that by the time he took early retirement from the Police, he had been a serving front line officer for approximately 20 years, during which time he had been required to give evidence in court on "possibly hundreds" of occasions. He said:

After leaving the Police it was my trustworthy and truthful reputation, as well as my investigative skills, which I ‘took with me’ in terms of employment outside of the police environment. In the space of less than an hour the 20/20 programme stripped me of something I had worked and striven for over the previous 20 years, my honest reputation.

Accordingly, Mr Weir submitted that the following penalties would be appropriate:

1. An order under section 13(1)(a) directing TV3 to distribute a press release to all national media in the form of a public apology to him, advising that the Authority had upheld the complaint.  Mr Weir’s submission suggested the matters the release should cover.

2. An order under section 13(1)(b) directing TV3 to refrain from advertising for a "reasonable period of time" not exceeding 24 hours. Mr Weir asked that the period of time be reduced and, although not provided for in the Act, that the Authority order TV3 to pay the proceeds of the continued advertising to a non-profit charity of his choice.

3. An order under section 13(1)(d) directing TV3 to pay him compensation for "failing to maintain standards … consistent with [his] privacy."

4. An order under section 16(1) directing TV3 to pay his legal expenses.

The Authority has considered carefully the submissions made by the parties, including additional submissions contained in the broadcaster’s letter of 10 April 2001 and in the complainant’s letter of 18 April 2001. Taking into account the nature of the breach on this occasion and penalties which have been imposed in the past in similar circumstances, the Authority imposes the following orders.

Orders

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders TV3 Network Services Ltd to broadcast, within one month of the date of this decision, a statement explaining why two aspects of the complaint were upheld. The statement shall be approved by the Authority and shall be broadcast at a time and date to be approved by the Authority.

Pursuant to section 16(1) of the Act, the Authority orders TV3 Network Services Ltd to pay, within one month of the date of this decision, the sum of $1,500 by way of costs to Mr Milton Weir.

The Order shall be enforceable in the Dunedin District Court.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the order has been complied with.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
3 May 2001

Appendix

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

1. Milton Weir’s Complaint, through his lawyer, to TV3 – 26 August 2000
2. TV3’s Response to the Formal Complaint – 22 September 2000
3. Mr Weir’s Referral to the Broadcasting Standards Authority – 18 October 2000
4. TV3’s Response to the Authority – 15 November 2000
5. Mr Weir’s Final Comment – 20 November 2000
6. TV3’s Further Comment – 4 December 2000
7. Mr Weir’s Submission on Penalty – 28 March 2001
8. TV3’s Submission on Penalty – 5 April 2001
9. TV3’s Response to Mr Weir’s Submission on Penalty – 10 April 2001
10. Mr Weir’s Response to TV3’s comments on his Submission – 18 April 2001