Women's Action for Justice and Television New Zealand Ltd - 1997-065
- J M Potter (Chair)
- L M Loates
- A Martin
- Women's Action for Justice
ProgrammeOne Network News
BroadcasterTelevision New Zealand Ltd
"She wasn't a battered woman" Wendy Johnston said of Gay Oakes when the result
of Ms Oakes' unsuccessful appeal to the Privy Council against her conviction for
murder was announced. Ms Johnston is a sister of the man murdered by Ms Oakes
and the comment was included in an item on One Network News broadcast between
6.00–7.00pm on 7 February 1997.
On behalf of Women's Action for Justice, Ms Tighe Instone complained to Television
New Zealand Ltd that the comment was "blatantly incorrect". Judges in the High
Court and Court of Appeal had accepted that Ms Oakes was a battered woman.
Explaining that the comment was clearly Ms Johnston's opinion and that the item had
included other opinions, TVNZ declined to uphold the complaint. The Court's ruling,
it added, showed an open mind on battered woman's syndrome in this specific case.
Dissatisfied with TVNZ's decision because, she claimed, it confused the battered
woman's syndrome defence with the accepted fact that Ms Oakes was a battered
woman, Ms Instone on behalf of the Group referred the complaint to the Broadcasting
Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
The members of the Authority have viewed the item complained about and have read
the correspondence (summarised in the Appendix). As is its practice, the Authority
determines the complaint without a formal hearing.
Gay Oakes appealed her conviction for the murder of Douglas Gardner to the Privy
Council. Her counsel argued that the conviction should be quashed in view of the
defence of battered woman's syndrome. The appeal was unsuccessful, reported an
item on One Network News, and comments were included from Ms Oakes' counsel,
from Tighe Instone of Women's Action for Justice which deplored the result, and
from Wendy Johnston who is a sister of the late Mr Gardner. Ms Johnston
commented that Gay Oakes "was not a battered woman".
On behalf of Women's Action for Justice, Ms Instone complained to TVNZ that the
categorical statement was not correct. While she acknowledged that the Gardner
family was entitled to its opinion, she noted that judges in the High Court and the
Court of Appeal had acknowledged that Ms Oakes was a battered woman.
TVNZ assessed the complaint under standard G14 of the Television Code of
Broadcasting Practice which reads:
G14 News must be presented accurately, objectively and impartially
Arguing strongly that Ms Johnston's comment was an opinion she was entitled to
express, TVNZ suggested that the item might have been unbalanced had Ms
Johnston's view been omitted. TVNZ also observed that the Appeal Court did not
accept that Ms Oakes was suffering from battered woman's syndrome.
The relevance of this comment was questioned by Ms Instone when she referred the
group's complaint to the Authority. While the Court might have questioned the
applicability of battered woman's syndrome in this case, Ms Instone maintained that
the fact that Ms Oakes was a battered woman, despite Ms Johnston's statement, was
not in doubt for the judges in the High Court and Court of Appeal.
In its report to the Authority, TVNZ again emphasised that the comment was "clearly
an expression of Ms Johnston's opinion". In reply Ms Instone accepted that the
Gardner family was entitled to an opportunity to express an opinion. However, she
continued, "the law requires that such opinions ... be based on true facts". In the
present case the fact that Ms Oakes was a battered woman was indisputable in view
of the evidence.
The Authority nevertheless accepts, as public discussion exemplifies, that a
conviction following a criminal trial does not close off debate, first, as to the facts, and
secondly, as to the conclusions which can be drawn from those facts.
Indeed, it is with some irony that the Authority notes the complainant group
approach to the complaint and that a ruling from the Court is incontestable.. On the
one hand, in support of this stance, it agrees with the Court – as an unchallengeable
fact – that Ms Oakes was a battered woman. However, on the other hand, the group
disagreed strongly with the Court's ruling about the applicability of the battered
woman's syndrome defence.
In considering the group's argument that Ms Johnston's comment was advanced as a
statement of fact, the Authority accepts that it was advanced by Ms Johnston on that
basis. However, taking into account the other comments included in the item, it is
readily apparent that it was a fact in dispute and that Ms Johnston was expressing a
view on the disputed fact. That conclusion is in no doubt when it is considered that
the other people interviewed also advanced "statements of fact", and viewers were
told that Ms Johnston was speaking as a member of the murdered man's family.
In view of the range of opinions advanced in the item that discussed the dismissal of
Ms Oakes' appeal against her murder conviction, the Authority does not accept that
standard G14 was breached.
For the reasons above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
22 May 1997
Women's Action for Justice's Complaint to Television New Zealand Ltd -
16 February 1997
On behalf of Women's Action for Justice, Tighe Instone complained to Television
New Zealand Ltd, through the Broadcasting Standards Authority, about an item on
One Network News, broadcast between 6.00 - 7.00pm on 7 February 1997.
The item dealt with the decision of the Privy Council on the appeal by Gay Oakes
against her conviction and, Ms Instone wrote, it was "blatantly incorrect" when Ms
Wendy Johnston stated that Ms Oakes was not a battered woman. The specific
comment made by Ms Johnston (the murder victim's sister) was included in the
Acknowledging that members of the victim's family were entitled to their opinion, Ms
Instone nevertheless pointed out that the Crown Prosecutor, and judges in the High
Court and Court of Appeal, had conceded that Ms Oakes was a battered woman. A
comment to that effect from Justice Hardie Boys in the Court of Appeal's decision
was cited in the letter of complaint.
TVNZ's Response to the Formal Complaint - 12 March 1997
Assessing the complaint under standard G14 of the Television Code of Broadcasting
Practice, TVNZ said that Ms Wendy Johnston's comment was clearly her opinion.
The item, it said, had also included the opinions from Ms Oakes' counsel and from the
complainant group and were broadcast to allow the viewer to consider the different
Wendy Johnston was entitled to express a view about this case, and that view
went some way towards ensuring that the item was fair and balanced. After all,
the Appeal Court ruling delivered by Justice Hardie Boys (the subject of the
Privy Council referral) clearly records an open mind on battered woman's
syndrome in this specific case.
TVNZ included a comment from Justice Hardie Boys' decision to illustrate his
attitude, and declining to uphold the complaint, it concluded:
The purpose of this item was to tell viewers that the final appeal open to Ms
Oakes had been turned down. It was appropriate to hear from a representative
of the murder victim's family to get its perspective on the case. It was also
appropriate to hear from you as you ventured an opinion on the matter of
premeditation, and from Ms Oakes' counsel as she called for a change in the law.
The Group's Referral to the Broadcasting Standards Authority - 24 March 1997
Dissatisfied with TVNZ's decision, on behalf of Women's Action for Justice, Ms
Instone referred the complaint to the Broadcasting Standards Authority under
s.8(1)(a) of the Broadcasting Act 1989.
The comment from Justice Hardie Boys cited by TVNZ, Ms Instone wrote, referred
to battered woman's syndrome. Ms Johnston, however, referred to Ms Oakes and
said that "she wasn't a battered woman". That fact was accepted during the trial, Ms
Instone explained, but her defence of "battered woman's syndrome" was not.
TVNZ's Response to the Authority - 9 April 1997
Advising that it had nothing of substance to add, TVNZ wrote:
The comment by Wendy Johnston to which Women's Action for Justice objects
was clearly an expression of Ms Johnston's opinion - an opinion which, as a
member of the murdered man's family, she was entitled to have heard.
The Group's Final Comment - 20 April 1997
The complainant group expressed its agreement that the Gardner family should be
allowed to advance its opinion. However, it added, such opinions must be based on
fact. On this occasion the opinion put forward was that Ms Oakes was not a battered
woman - an opinion which was in conflict with the evidence and the ruling from the
As Ms Johnston's opinion was not countered by the facts, it was advanced as an
assertion of fact, and, consequently standard G14 was breached.