Decision No: 2004 -115 Dated: 3 September 2004 Complainant PETER ELLIS of Christchurch Broadcaster RADIO NEW ZEALAND LTD

Members
Joanne Morris, Chair
Tapu Misa
Diane Musgrave
Paul France

Co-opted Person
Christopher Toogood QC

Summary of broadcast complained about

[1] On Monday 25 August 2003 on Nine to Noon on National Radio, Radio New Zealand Ltd broadcast a pre-recorded interview conducted three days earlier by Nine to Noon presenter Linda Clark. The interviewees – a young man identified as “Nathan” and a woman identified as his mother – alleged that Peter Ellis had abused Nathan when Nathan was attending the Christchurch Civic Crèche in 1985. Nathan and his mother did not specify the nature of the alleged abuse, but sexual abuse was clearly implied.

[2] Before describing the broadcast complained about in more detail (see paragraphs [16] to [23]), the Authority sets out some background which is relevant to its determination of the complaint.

Background

[3] In June 1993, a jury in the High Court at Christchurch found Peter Ellis guilty on 16 of 25 charges of committing sexual offences against young children at the Christchurch Civic Crèche where he had been employed as a child care worker. He was sentenced to 10 years imprisonment.

[4] Mr Ellis appealed against his convictions on the grounds that the verdicts were unreasonable in that the evidence of the children was not credible and that there had been a miscarriage of justice. In September 1994 the Court of Appeal quashed three of the convictions (relating to one of the children who had retracted her accusations during the course of the appeal hearing) and dismissed the rest of the appeal.

[5] In February 2000 Mr Ellis was released from prison, having served the mandatory two-thirds of his sentence.

[6] Mr Ellis has always maintained his innocence.

[7] In the decade since 1993, the circumstances surrounding Mr Ellis’s convictions have been the subject of considerable public controversy, widespread media coverage, and a number of unsuccessful calls for commissions of inquiry into the case and/or the exercise of the Royal Prerogative of Mercy.

[8] In March 2001, former Chief Justice Sir Thomas Eichelbaum released his report on a ministerial inquiry into the case. The terms of reference for the ministerial inquiry included a requirement that Sir Thomas report on:

… whether there are any matters which give rise to doubts about the assessment of the children’s evidence to an extent which would render the convictions of Peter Hugh McGregor Ellis unsafe and warrant the grant of a pardon.

[9] On that term of reference Sir Thomas’s report concluded:

The case advanced on behalf of Mr Ellis fails … to satisfy the Inquiry that the convictions were unsafe, or that a particular conviction was unsafe. It fails by a distinct margin; I have not found this anything like a borderline judgment2.

[10] In October 2001, Lynley Hood’s book A City Possessed: the Christchurch Civic Crèche case was published. Lynley Hood concluded that, after years of investigation into the Christchurch Civic Crèche case, she had found “no evidence of illegality by anyone accused in this case”1. Instead, she wrote:

… I found convincing evidence that more than 100 Christchurch children [ie the children who were interviewed by the Specialist Services Unit of the (then) Department of Social Welfare] had been subject to unpleasant and psychologically hazardous procedures for no good reason, and that a group of capable and caring adults with no inclinations towards sexual misconduct with children [ie Peter Ellis and his fellow child care workers] had had their lives ruined as a result.

[11] A City Possessed contributed to further public debate. In June 2003, a number of prominent New Zealanders launched a high-profile petition requesting a Royal Commission of Inquiry into the Christchurch Civic Crèche case. The petition sought an inquiry into “all aspects of the investigation and legal processes relating to the Christchurch Civic Crèche case”. The petition stated that the case was of “great public and professional concern” and raised “serious questions about the administration of justice and the working of existing laws which must be addressed”.

[12] The petition was presented to Parliament on 24 June 2003 by Lynley Hood and Member of Parliament Dr Donald Brash. At the date of release of this Decision in Part, the petition is before the Justice and Electoral Select Committee.

August 2003

[13] Several media reports were published or broadcast in August 2003, near to the time of the broadcast complained about (25 August 2003), which are of general relevance to this decision. They are:

• On 3 August, the publisher of The National Business Review, Barry Colman, took out a two page advertisement in the Sunday Star Times featuring excerpts from transcripts of videotaped interviews with some of the crèche children who Mr Ellis was accused of abusing. Some of the interviews had been shown to the jury at Mr Ellis’s trial, and some had not. Mr Colman told a Sunday Star Times reporter3 he believed no jury would have convicted Mr Ellis if it had seen all of the videotapes, and that in his view Mr Ellis was the victim of a “hysterical witch-hunt”.
• On 16 August, The Dominion Post newspaper published an article entitled “I am sick of being called a liar”. The article comprised an interview with two of the children Mr Ellis had been convicted of abusing. The catalyst for the interview was the Sunday Star Times advertisement published earlier in the month. The children, now teenagers, reported that their parents and counsellors had not manipulated them into making up allegations against Mr Ellis, that they felt betrayed by supporters of Mr Ellis, and that Mr Ellis was guilty.
• On 21 August, Nine to Noon presenter Linda Clark interviewed Gaye Davidson on National Radio. Gaye Davidson was the crèche supervisor at the time Mr Ellis worked there. The interview included discussion of: the two teenagers having come forward the previous week to reaffirm Mr Ellis’s guilt; allegations by some that the complainant children had “false memories”; and the petition requesting a Royal Commission of Inquiry. During the interview, Ms Davidson maintained that Mr Ellis had not committed the crimes for which he was convicted.
• On 31 August, TV3 Network Services Ltd broadcast an item on 20/20 on TV3 entitled “Crèche Case”. The item reviewed the history of the Christchurch Civic Crèche case in the context of the petition calling for a Royal Commission of Inquiry. It reported that the Justice and Electoral Select Committee would begin considering the petition the following week, and would be making recommendations to the Government.

[14] During the 20/20 programme ”Crèche Case”, and referring to the Nine to Noon interview with Nathan and his mother which is the subject of this complaint, 20/20 reported that “new allegations” had been made that week. The reporter stated:

Ellis won’t comment on the latest allegations because his legal counsel is preparing defamation proceedings against Radio New Zealand. But he did say that at the time the alleged abuse was supposed to have taken place, he didn’t even know where the crèche was, let alone anyone who worked there.

[15] The 20/20 item also quoted Gaye Davidson stating:

Peter Ellis wasn’t at the crèche in 1985, none of the staff or any of us knew about him until August 1986, and this is just the madness all starting again.

Broadcast complained about

[16] Nine to Noon is broadcast from 9am until noon each weekday on National Radio. Nine to Noon is a magazine programme described on Radio New Zealand’s website as investigating:

… everything from hard news to lifestyle issues, with the help of newsmakers, overseas commentators and correspondents, fellow journalists, experts in every imaginable field, writers, reviewers and ordinary New Zealanders4.

Nine to Noon is presented by Linda Clark.

[17] On Monday 25 August 2003, a pre-recorded interview was broadcast on Nine to Noon. It comprised Ms Clark interviewing a young man and his mother. During the interview the young man’s mother referred to him as “Nathan”. Nathan’s mother’s name was not given. RNZ advised the Authority that Ms Clark interviewed Nathan face to face, and Nathan’s mother by telephone.

[18] Ms Clark introduced the item as follows:

When it comes to the Christchurch Civic Crèche case I think we now all agree that the children were abused. What the country can’t agree on is by whom. Is it Peter Ellis who’s to blame or the legion of psychologists and interviewers who questioned these children and led them to believe the abuse took place?

As you know, a celebrity-studded petition calling for a Royal Commission into the case goes before a select committee in the next few weeks. This morning you’re going to hear from one family who claims to know a great deal about Peter Ellis and the Christchurch Civic Crèche, yet they were never part of the police case. The boy was never interviewed as a small child by police or by psychologists. He was never part of the process Peter Ellis’s supporters claim brainwashed the other children. And why? Because it wasn’t until he was 16 years old that he told anyone he’d been abused.

I spoke to him and his mother on Friday afternoon. I began by asking him why he was so sure that it was Peter Ellis who abused him.

[19] A full transcript of the interview is attached as Appendix I. The following four bullet points summarise the story told by Nathan and his mother during the 40 minute interview.

• Nathan attended the Christchurch Civic Crèche for a short time at the end of 1985 when he was four. He became reluctant to go, and would hang on to the car door and the crèche gate and scream. At the time, Nathan’s parents thought he was just reluctant to be away from them. While he was at the crèche, he started wetting the bed, waking up from nightmares and vomiting, and complaining he had a “greasy bottom”. Nathan’s mother suspected something “untoward” was going on. She had noticed other things such as crèche children playing without their underwear or clothes on, and Nathan had told her he had been taken to a house and to a park by crèche staff. One day Nathan came home from the crèche with a very sore penis. On another occasion, two crèche staff, one of whom Nathan’s mother was sure was Peter Ellis, brought Nathan to her place of business before the end of the crèche day and left him there without explanation. She then took him away from the crèche, and the family subsequently moved to South Canterbury.
• In 1992 Nathan’s parents found out via the television news that Peter Ellis had been charged with committing offences at the crèche. Nathan was with his mother during the news item, and when he saw Peter Ellis walking towards the camera he “stopped dead in his tracks” and “went as white as a sheet” and said “I was at that crèche, I was at the crèche. … Nothing happened to me. Nothing happened to me”. He ran away and hid in a tree until it was dark. Nathan’s mother thought something must have happened to him, but when she asked him he denied it. She rang Brian Pearce at the Christchurch police station and visited a social worker working on the case, who told her not to do anything or ask Nathan again, but to wait until he was ready to tell her. Nathan’s parents did not bring the matter up again. They did not follow the case because they were extremely busy in their business at the time. Nathan was never interviewed as part of the Christchurch Civic Crèche case.
• Nathan did not tell anyone he had been abused until he told his mother one day when he was about 16. He first worked out he had been abused when he was about 14. Up until then he knew something was wrong. He knew things about sex that children of his age should not know. When he was 14 and started socialising with friends and girls he started to realise he was not really a normal teenager. For example, it scared him to socialise with girls, and he would “freak out” if a girl tried to kiss him or touch him. He “couldn’t handle” playing sport or doing physical education at school because of having to get changed in the changing rooms.
• In 2002 Nathan went to the police and was interviewed. The police initially told Nathan’s mother that it could not have been Peter Ellis because he did not work at the crèche at the time Nathan was there. Later the police told Nathan’s mother that they had a “reliable witness” who said that Peter Ellis was “associated and hanging out with people” at the crèche at that time. The police told Nathan they would not go ahead with a prosecution on his evidence alone. Nathan and his family are considering bringing a private prosecution against Peter Ellis.

[20] During the interview, the interviewer raised the following matters with Nathan for comment or response:

• that Mr Ellis had always denied and continued to deny inappropriately touching any of the children at the crèche
• that the women who worked with Mr Ellis at the crèche said that the abuse for which he was convicted could never have happened
• that Lynley Hood, author of A City Possessed, said that the crèche children who were convinced they had been touched and abused by Mr Ellis had false memories and had been manipulated by their parents or by counsellors and psychologists into thinking that they had been abused.

[21] During the interview, the interviewer raised the following matters with Nathan’s mother for comment or response:

• the fact that Nathan was at the crèche at the end of 1985 and, according to Lynley Hood’s book, Mr Ellis did not begin working at the crèche until 1986
• whether Nathan’s mother was in any doubt that the man who came to her place of business with Nathan was Mr Ellis.

[22] At the conclusion of the interview, the interviewer said to Nathan and his mother:

Well, I appreciate you both joining us for this conversation and I know it’s been a difficult thing to talk about.

[23] She then told listeners:

As I said at the outset, we pre-recorded that interview, clearly for legal reasons, and we haven’t, we have deliberately not used the name of the boy although his mother there referred to him by his first name Nathan, and that was at the wishes of the family.

Complaint

[24] Through his lawyers, Peter Ellis complained to Radio New Zealand Ltd, the broadcaster, that the Nine to Noon interview with Nathan and his mother was “grossly unfair” and lacked balance, and that he had been given no opportunity to respond to the allegations.

[25] Mr Ellis advised RNZ that defamation proceedings were being prepared against RNZ and the interviewees, and that the letter of complaint constituted a formal complaint under s.6(1) of the Broadcasting Act 1989.

[26] Mr Ellis denied the allegations made in the broadcast. There was “clear evidence” they were untrue, he stated, including that:

• he did not know Nathan
• he was not at the Christchurch Civic Crèche at the time Nathan and his mother alleged the events to have occurred. He stated that he had no association with the crèche, or anyone at it, until he started working there in the second half of 1986.

[27] Mr Ellis requested a public retraction and an apology. Through his lawyers, Mr Ellis stated:
The format and content were particularly unbalanced and unfair to Mr Ellis in that an unidentified accuser made unproven allegations of criminal conduct on his part, which your interviewer uncritically accepted and broadcast nationally without any of these allegations being put to him for his response. Further your interviewer formulated several of the most serious allegations and invited “Nathan” and his mother to confirm them.

RNZ’s Initial Reply to the Complainant

[28] RNZ, through its lawyers, denied that the format and content of the interview lacked balance or were unfair, and denied that the interviewer had in effect “led” the interview. It declined the request for a retraction and apology.

[29] RNZ’s reply stated:

[RNZ] is quite willing to provide an opportunity to Mr Ellis to be interviewed on the [Nine to Noon] programme as had been the offer to him prior to the broadcast about which he complains. We are sure you will be aware that Gaye Davidson was interviewed by Linda Clark a matter of days preceding the broadcast. Further it is noted that Mr Ellis agreed to be interviewed on the TV3 20/20 programme in relation to the same topic. Alternatively, Mr Ellis may wish to make a statement in reply which, subject to usual editorial discretion, could be broadcast as he may wish.

[30] RNZ did not respond to the broadcasting standards complaint. It suggested that it defer its response until the complainant had decided whether to issue defamation proceedings.
The Complainant’s Initial Response to RNZ

[31] Through his lawyers, Mr Ellis advised RNZ that he and his legal counsel were considering the invitation for a subsequent interview.

[32] Mr Ellis requested RNZ to respond to the broadcasting standards complaint, noting that the prospect of defamation proceedings had no bearing on the broadcaster’s statutory obligation to consider formal complaints, and that there was no provision in the Broadcasting Act 1989 to allow consideration of complaints to be deferred because of the prospect of defamation proceedings.

RNZ’s Response to the Complainant on the Broadcasting Standards Complaint

[33] RNZ subsequently responded to the broadcasting standards complaint.

[34] RNZ assessed the complaint under Principles 4 and 5 of the Radio Code of Broadcasting Practice. The principles and relevant guideline provide:

Principle 4

In programmes and their presentation, broadcasters are required to maintain 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.

Guideline 4b

Broadcasters may have regard, when ensuring that programmes comply with Principle 4, to the following matters:
(i) …
(ii) Any reasonable on-air opportunity for listeners to ask questions or present rebuttal within the period of current interest. Broadcasters may have regard to the views expressed by other broadcasters or in the media which listeners could reasonably be expected to be aware of.

Principle 5

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

[35] In relation to the Principle 4 (balance) aspect of the complaint, RNZ stated that there was “little doubt” that “the ‘Peter Ellis’ topic” had “assumed the status of a controversial issue in New Zealand society”. Highlighting the requirement in Principle 4 that broadcasters present significant points of view “either in the same programme or in other programmes within the period of current interest”, RNZ noted that there had been “extensive coverage of the topic in other programmes and news bulletins on National Radio and in other print and electronic media”.

[36] RNZ argued that “the period of current interest” for “the ‘Peter Ellis’ topic” was “open ended at this stage”. Submitting that balance could be achieved through other programmes in the period of current interest, it wrote that a finding on whether the broadcast complained about lacked balance could not be made “at this point”. It advised the complainant that, on that ground alone, it did not uphold the complaint.

[37] RNZ continued:

As well, given the breadth and depth of coverage of the issue on other Radio New Zealand programmes and news bulletins, for example the interview with Gaye Davidson on the 21st of August 2003, it was concluded that opportunity has been given for the presentation of “other significant points of view”. On these grounds as well, it was found that there had been no breach of Principle 4 in this instance.

[38] RNZ declined to uphold the balance aspect of the complaint.

[39] In relation to the Principle 5 (fairness) aspect of the complaint, RNZ noted that:

• Mr Ellis had been “personally invited” to participate on the Nine to Noon programme and had declined the offer
• Mr Ellis and his legal counsel were currently considering RNZ’s further invitation to appear on Nine to Noon, made since the broadcast complained about
• it had broadcast other interviews on the topic, in particular the Gaye Davidson interview on 21 August which it said “in part formed a defence of Mr Ellis’s position”.

[40] RNZ wrote:

Mr Ellis’s own reluctance to appear on the programme is outside of the control of Radio New Zealand. As he was unwilling to appear on the programme the allegation that he was given no opportunity to respond to the allegations is incorrect. As the opportunity was extended to Mr Ellis, and the invitation has been subsequently repeated, Radio New Zealand rejects the allegation that the programme was unfair.

[41] RNZ declined to uphold the fairness aspect of the complaint.

Referral to the Authority

[42] Dissatisfied with RNZ’s decision, Mr Ellis, through his lawyers, referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. Mr Ellis’s lawyers stated:

In short the complaint that Mr Ellis made that the programme was unfair and unbalanced was rejected because he had refused to participate in an interview.

[43] Mr Ellis advised the Authority that the evening before the programme complained about was broadcast, RNZ invited him to participate “in a sympathetic interview” with the presenter of Nine to Noon. He advised that he was given no notice that the content of the following day’s programme was the interview with Nathan and his mother, and their allegations.

[44] Mr Ellis’s lawyers continued:

Mr Ellis declined to be interviewed. Irrespective of that, Mr Ellis’s position is that imbalance and unfairness in a programme cannot be said to be eliminated by his refusal to participate in a programme and particularly one in which unsubstantiated and serious allegations were to be made against him. Mr Ellis is entitled not to participate and it is wrong for Radio New Zealand to suggest that his refusal to do so justifies the unfair and unbalanced programme.

[45] Mr Ellis considered that the broadcast breached:

• Principle 4, because he had been given “no reasonable opportunity” to present his point of view within the same programme or “sufficiently near in time within the period of current interest” and, in particular, he was given “no fair notice of the contents of the programme” when he was invited to be interviewed
• Principle 5, because he was not dealt with fairly and the material was “significantly unbalanced”
• Principle 6 [the requirement for truth and accuracy on points of fact5 , in that the allegations made by Nathan were presented as truthful and accurate facts, whereas they were unsubstantiated allegations which he denied. He argued that the broadcast made no distinction between fact, opinion and comment.

Summary of further submissions from RNZ and Mr Ellis

[46] Following receipt of Mr Ellis’s referral, the Authority received five further relevant submissions from both RNZ and Mr Ellis6. As the submissions were lengthy and detailed, for ease of reference the Authority summarises them under the following headings and subheadings:

• Principle 4 – Balance (see paragraphs [48] to [92])
  • The controversial issue of public importance being discussed, and the period of current interest for that controversial issue
  • Whether RNZ made reasonable efforts to present significant points of view in the programme complained about
  • Whether RNZ gave reasonable opportunities to present significant points of view in the programme complained about or in other programmes in the period of current interest
  • Whether reasonable efforts were made or reasonable opportunities were given to present significant points of view in other programmes within the period of current interest, having regard under Guideline 4b(ii) to the views expressed by other broadcasters or in the media of which listeners could reasonably be expected to be aware.
• Principle 6 – Accuracy (see paragraphs [93] to [103])
  • Whether Nine to Noon is a news and current affairs programme to which Principle 6 applies
  • The requirement for truth and accuracy on points of fact, and the requirement in Guideline 6c that fact and opinion be clearly distinguished
  • The application of the New Zealand Bill of Rights Act 1990 to the complaint (see paragraphs [104] to [108]).

[47] The parties made no further submissions on the requirement in Principle 5 (fairness) that broadcasters deal justly and fairly with any person taking part in, or referred to in, a programme.

Principle 4 – Balance

The controversial issue of public importance being discussed, and the period of current interest for that controversial issue

[48] RNZ initially argued that the Nathan interview was “inextricably linked with Mr Ellis’s supporters’ request for a commission of inquiry”. RNZ wrote:

The Authority may wish to note coverage given by other media in the period of current interest particularly the interview given in The Dominion Post by two of those originally abused.

The “period of current interest” now centres on the call for a commission of inquiry and inevitably all matters related to that call. The “Nathan” interview clearly falls within the boundaries of the current controversy and by its timing is within the period of current interest for that controversy.

[49] RNZ later submitted that the interview should be considered in the context of the ongoing media attention in relation to the various allegations against Peter Ellis. The interview was “generally relevant” in the context of the “Peter Ellis controversy”, and “specifically relevant” in the context of the “false memories” allegations, it argued.

[50] Mr Ellis disputed that the Nathan interview was “inextricably linked to [his] supporters’ call for a commission of inquiry”. He said RNZ had misunderstood the request for a commission of inquiry, and explained that:

• it was part of a petition to Parliament by author Lynley Hood and politician Dr Donald Brash
• it was neither at his behest nor signed by him or his legal counsel
• it was “very tightly focussed on the investigation and prosecution of the crèche cases” and was about “due process and the effectiveness of the criminal justice system”
• while he might realistically expect to benefit from a Royal Commission of Inquiry, he was not the petitioner and had not been invited to make submissions to the select committee.

[51] As to any relationship between the request for a Royal Commission of Inquiry and the Nathan interview, Mr Ellis argued that the Nathan interview concerned an allegation about him said to have occurred the year before he commenced employment at the Christchurch Civic Crèche. Neither Nathan nor his mother had sought to have their case be part of any potential inquiry. Furthermore, Mr Ellis argued, they said very little about the topic during the Nine to Noon interview complained about, even after prompting by the interviewer.

[52] Mr Ellis disputed that the “Peter Ellis topic” was the “controversial issue” being discussed in the interview with Nathan and his mother. The Nathan allegations, his lawyers submitted, were:

… a new and quite separate allegation, which had not been previously addressed in general public debate, and to which Mr Ellis had not had a proper opportunity to respond.

[53] Mr Ellis’s lawyers acknowledged that Mr Ellis’s convictions were a matter of ongoing public interest. However, he argued:

… the allegations published and seemingly endorsed by the Nine to Noon programme [were] an entirely separate issue.

[54] Nathan was not part of the original police investigation, nor was he attending the crèche at the time that Mr Ellis was employed there. Consequently, Mr Ellis argued, RNZ could not claim that the Nathan item fell within the general discussion concerning his earlier convictions.

[55] RNZ advised the Authority that Mr Ellis’s arguments that the Nathan interview was a separate matter from the ongoing Peter Ellis controversy, and that the “period of current interest” in relation to the Nathan story was narrow, were “rather artificial”. The period of current interest, it submitted, “certainly extended for long enough for Mr Ellis to have availed himself of one of the two separate offers to present his point of view”.

Whether RNZ made reasonable efforts to present significant points of view in the programme complained about

[56] RNZ argued that it had made reasonable efforts to present significant points of view in the programme complained about. It argued that the interviewer acted as “devil’s advocate” and put the following “significant issues” to Nathan and his mother:

• Mr Ellis always denied and continued to deny touching any of the children at the crèche
• women who worked with Mr Ellis said the abuse for which he was convicted could never have happened
• Lynley Hood’s book A City Possessed suggested that the children who said they had been abused by Mr Ellis had false memories and/or had been manipulated by parents/counsellors/psychologists
• there were problems, in terms of chronology, with Nathan’s account of events
• the interviewer sought to determine whether Nathan’s mother had any doubt that the man she saw with Nathan was Peter Ellis.

[57] RNZ submitted that the Authority should follow the principle expressed in Guideline 4b to Standard 4 of the Free-to-Air Television Code of Broadcasting Practice, which reads as follows:
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, it being acknowledged that this can be done only by judging each case on its merits.

[58] Citing the Authority’s “The Goons” decision (Decision No: 2003-006), RNZ argued that the “inherently negative nature” of matters being broadcast might be perceived as amounting to a “negative slant”, without there being a lack of balance.

[59] As to the relationship between editorial style and broadcasting standards, RNZ submitted:
How questions are put is a matter of editorial style at the discretion of the broadcaster and the presenter. A confrontational style will not necessarily best elicit information; this is a matter of judgment. But it is submitted that editorial style will not, save in the most extreme cases, raise broadcasting standards issues.

[60] Mr Ellis disputed RNZ’s contention that it had made reasonable efforts in the programme itself to present significant points of view, stating that “one [had] only to listen to the tape itself to see the futility of this argument”. It was “farcical”, his lawyers wrote, to suggest that the interviewer had acted as “devil’s advocate”. Of the five “significant issues” cited by the broadcaster (see paragraph [56]), only the last two were relevant and, when examined in context, were:

… put in such a way as to actually reinforce “Nathan’s” claims and explain away any perceived problems relating to [Mr Ellis’s] complaint.

[61] In response, RNZ did not agree that the first three issues put to Nathan were irrelevant, submitting that they were other relevant significant points of view. RNZ did not accept that the interviewer’s handling of the chronological problem reinforced the claims. Its lawyers wrote:

A blunt instrument is not always necessary or an appropriate way in which to put matters to an interviewee. This aspect of [the] submission relates to matters of editorial style and not to any allegation of breach of the relevant standard(s).

[62] In response, Mr Ellis’s lawyers stated that they had not been suggesting that an aggressive manner was necessary in order to put an alternative point of view or present a challenge to an allegation. Rather, they submitted:

… you do actually have to put the alternative view and you do have to challenge. What the interviewer did in this broadcast was to provide no other point of view and [the interviewer] failed completely to challenge the allegations. Where there was a clear opportunity to deal with areas of potential difficulty for the complainant [the interviewer] adopted an approach that effectively reinforced the allegation.
In this broadcast, which was clearly planned in advance, the manner of interview/the editorial style of the programme has prevented the presentation of significant points of view and contributed to the failure of the broadcaster to meet the obligations of the Code.

[63] Mr Ellis’s lawyers noted that the Nathan interview had been pre-recorded and that RNZ therefore knew “exactly what the substance of the accusations was”. The interview was therefore not a situation where RNZ could not be adequately prepared to provide some form of response to the allegations. In addition:

The presenter also appeared to be aware of the fact that Mr Ellis was not even working at the crèche at the time that “Nathan” claims he was abused by him, and thus that there were clearly difficulties with the boy’s allegations, which required challenging.

[64] Mr Ellis submitted that where the issue dealt with in a broadcast was of an inflammatory nature, the broadcaster had a greater responsibility to ensure that there was balance in the presentation, which must be achieved in more than just a simplistic manner. In support of that argument his lawyers cited the Authority’s recent “Foreshore and Seabed” decision (Decision Nos: 2004-036/037), where the Authority upheld complaints that a programme on the foreshore and seabed issue breached Standard 4 (balance) of the Free-to-Air Television Code of Broadcasting Practice. Mr Ellis’s lawyers wrote:

At paragraph 79 of its judgement, the Authority stated that contentious issues raised in a programme require either presentation of an opposing view, or critical examination by the reporter themselves, in order to satisfy Principle 4 of the Code.

[65] RNZ submitted that Mr Ellis’s lawyers had “overstate[d]” the Authority’s findings in the “Foreshore and Seabed” decision. It submitted that the Authority’s decision did not amount to a broad statement of principle, but was specific to the particular facts of that case.

[66] Mr Ellis rejected RNZ’s submission, submitting that the “Foreshore and Seabed” decision:

… properly reflects the higher standard required of a broadcaster when the content of the broadcast is of an inflammatory nature. … The requirement for impartiality, objectivity and responsibility is consistent with societal values and the privileged position a broadcaster enjoys.

[67] RNZ maintained its position that the Authority’s decision did not give rise to a heightened obligation on the broadcaster in the case of “any and all potentially inflammatory material”. The Broadcasting Act and the Radio Code, rather than the Authority’s decisions, defined RNZ’s obligations, it submitted.

[68] Mr Ellis’s lawyers responded that RNZ “inevitably” had to reject the principles enunciated in the “Foreshore and Seabed” decision in order to “maintain its stand”. They submitted that the Authority should give “due weight” to the “Foreshore and Seabed” decision. The making of a serious criminal allegation must carry with it a heightened obligation, they submitted, which was “entirely consistent with the spirit and intention of the Code and with duties in the civil arena”.

[69] In relation to RNZ’s argument that a broadcast could have a “negative slant” without being unbalanced, Mr Ellis argued that the Nathan interview was not an example of a balanced broadcast being achieved in spite of the inherently negative nature of the matters being broadcast. Rather, his lawyers stated:

Other significant points of view which were clearly available, even putting Mr Ellis to one side, were ignored by the broadcaster. It is hard to avoid the conclusion that there was no commitment to even attempt to provide a balanced programme.

[70] RNZ did not accept that other significant points of view had been ignored. They were presented in the programme itself, in other programmes, and in other media in the period of current interest, and Mr Ellis was twice offered an opportunity to present his point of view, but declined, it wrote.

[71] Mr Ellis submitted that it was “impossible to ignore the magnitude of the allegation that was to be knowingly aired” and the “corresponding obligation” on RNZ to ensure “to the best of its ability” that he was treated fairly. In response, RNZ contended that Mr Ellis’s reference to the “magnitude” of the allegation “sheds no light” on whether or not the Code was breached.

Whether RNZ gave reasonable opportunities to present significant points of view in the programme complained about or in other programmes in the period of current interest

[72] RNZ disputed Mr Ellis’s contention that the reason it had rejected his complaint was because he had “refused to participate in an interview”. Mr Ellis’s non-participation was “but one reason” for rejecting the complaint, it wrote.

[73] RNZ advised the Authority that it had offered Mr Ellis “various opportunities” to present his point of view, and in each case he had declined. Mr Ellis had been offered an opportunity to appear on Nine to Noon prior to the Nathan interview being broadcast. After the programme (and following receipt of the broadcasting standards complaint), RNZ again offered Mr Ellis the opportunity to appear on Nine to Noon, or alternatively to make a statement in reply to the broadcast.

[74] RNZ submitted:

In any event, any substantive response – other than the general points put to [the interviewees] by the presenter – would have to come from Mr Ellis himself. The opportunity to respond was provided to him and that, it is submitted, was in itself sufficient for the purposes of Standard 4.

[75] In response, Mr Ellis argued that it was important to have regard to the circumstances of any offer made to him. His lawyers advised the Authority:

• Mr Ellis had been contacted prior to the broadcast by a woman he thought was the “manager” of Nine to Noon (she called him in the evening, was “clearly distracted by children causing a disturbance in the background”, and he assumed she was at home).
• She invited him to do a “live” interview with Ms Clark. There was no mention of the Nathan allegation.
• Mr Ellis declined the interview and stated that he would not do an interview with Ms Clark because he did not like her style “in that she did not give people an opportunity to answer questions and he believed that she had her own agenda on [him] and would not be objective”. He also advised the woman that in any event he did not do live interviews.

[76] Mr Ellis’s lawyers considered that those circumstances “could never be regarded as providing a reasonable opportunity” to give his point of view. The offer for an interview was “no more than an invitation to an ambush”. Mr Ellis’s lawyers cited the Authority’s “Corngate” decision (Decision No: 2003-055/061) in support of their argument that a refusal to appear on a programme did not relieve a broadcaster of its obligations under the Radio Code.

[77] In response, RNZ submitted that a person could not, by refusing to provide their point of view, “effectively stifle the media or a particular media organisation”. RNZ’s lawyers wrote that Mr Ellis had conceded that:

… [he] was simply not prepared to appear on the programme and would not have done so under any circumstances; he didn’t like Ms Clark’s style. That is a matter for him.

[78] In RNZ’s submission, the two opportunities offered to Mr Ellis to appear on Nine to Noon, were “reasonable opportunities” as required by Principle 4. Mr Ellis’s media preferences (20/20 but not Nine to Noon) did not render the offers “unreasonable”. In addition, even if he did not wish to appear live on Nine to Noon, if Mr Ellis had genuinely wished to put his point of view he could have provided a statement. RNZ’s lawyers submitted:

The fact is that, in conjunction with their threats of defamation proceedings, Mr Ellis/his lawyers chose not to provide anything further to RNZ/Nine to Noon for broadcast. It is respectfully submitted that strategic (and selective) silence should not advance the complaint to the Authority.

[79] In response, Mr Ellis argued that the offers afforded him to present his point of view “lacked bona fides”. Even if a bona fide offer had been extended and declined, Mr Ellis submitted that the broadcaster’s obligation to present a balanced viewpoint would continue. Mr Ellis’s lawyers‘ submissions continued:

In any event, the idea that only Mr Ellis himself could provide the balance or had an obligation through his Counsel to provide balance is patently incorrect.

Mr Ellis did not choose to put his point of view on 20/20. In fact he declined to comment on the new allegations.

RNZ suggest that Mr Ellis could have taken steps to ensure that his point of view was presented. In fact the obligation is on RNZ, not Mr Ellis, to ensure that significant points of view are presented.

Whether reasonable efforts were made to present significant points of view in other programmes within the period of current interest, having regard under Guideline 4b(ii) to the views e