BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The re-trial of Auckland man, David Dougherty, his subsequent acquittal, and his

claim to the Crown for compensation over his original conviction and imprisonment,

were featured in an item on 20/20, entitled "Burden of Proof", broadcast on TV3 on

21 December 1997 at 6.30pm. The item reviewed the case in which Mr Dougherty

had originally been convicted of the rape of an 11-year-old girl. It looked at the child's

evidence of identification, and DNA evidence, used in the trials. The programme also

noted that Mr Dougherty's claim for compensation had been rejected.

The complainant complained to TV3 Network Services Limited, the broadcaster, that

the item did not have any input from the complainant's family, the police, or anyone

representing the Minister of Justice or Cabinet. She also complained that evidence of

the child's identification of Mr Dougherty as her assailant was "rehashed" to mean

something else, and without the child's consent.

TV3 responded that the comments about identification were a fair reflection of the

child's statements to police. It also claimed that the programme's comments on the

Crown's refusal of compensation to Mr Dougherty were a succinct and fair summary

of the Minister's decision, and did not require other parties' input.

Dissatisfied with the broadcaster's response, the complainant referred her complaint

to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act

1989.

For the reasons given below the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). On this occasion, the Authority

determines the complaint without a formal hearing.

An item on 20/20 broadcast on 21 December 1997 focussed on the case of David

Dougherty, who had been convicted of the rape of an 11-year-old Auckland girl, and

imprisoned for over 3 years. He was subsequently re-tried and acquitted. His claim

to the Crown for compensation over the conviction and subsequent imprisonment was

rejected. The programme – "Burden of Proof" – reviewed the case and focussed on the

child's evidence of identification, and DNA evidence, both of which had been major

subjects of focus in the re-trial.

Complainant X, the mother of the girl who was raped, complained that the broadcast

excluded comment from the following: the child victim's family, the police, and the

Minister of Justice or any of his Cabinet colleagues, who had decided not to award

compensation. Moreover, she wrote, the identification evidence in relation to Mr

Dougherty's moustache should have been dealt with in full.

TV3 assessed the complaint under standards G19 and G20 of the Television Code of

Broadcasting Practice. They read:

G19 Care must be taken in the editing of programme material to ensure that the

extracts used are a true reflection and not a distortion of the original event

or the overall views expressed.

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.

TV3 explained that the broadcast was essentially the same programme as was

broadcast in April 1997, about which Complainant X had already complained. That

complaint, it noted, had not been upheld by the Broadcasting Standards Authority.

The changes prior to the second screening had included the omission of the phrase,

"the new trial was this week", and the inclusion of a comment from the presenter at

the end of the broadcast (i.e. a back-announcement) that a trial fund had been

established to contest the Minister of Justice's decision to refuse compensation to Mr

Dougherty.

As for the reference in the complaint to the identification evidence, TV3 maintained it

had been a fair reflection of what the victim had told the police.

When she referred her complaint to the Authority, Complainant X enclosed a copy of

the judge's notes to the jury on the identification point. She disputed TV3's

contention that the summary contained in the programme was fair. Rather, she wrote,

it was "one-sided and misleading". She maintained that TV3's approach in omitting

comment from others involved in the compensation issue resulted in a "narrow minded

inaccurate programme".

In its consideration of the complaint, the Authority looks initially at the standards

under which TV3 assessed the complaint. While it considers that the issues raised are

more directly related to the requirement for balance contained in standard G6, the

Authority accepts that the standards nominated by TV3 (G19 and G20) allow it to

address the issues raised by the complainant.

Turning to the aspect of the complaint that the item dealt inadequately with the

identification aspect of the evidence relating to Mr Dougherty's moustache, the

Authority understands Complainant X's focus on this point, as her daughter's

identification had been central to the course of the case before DNA testing became

available. The Authority accepts that the broadcast did in fact over-simplify the

child's evidence to an extent on the subject. The judge's notes, made available by the

complainant, show that her daughter gave reasonably detailed evidence about Mr

Dougherty's appearance. However, to the Authority's mind, the passages relied

upon were equivocal, and it is unable to conclude that there was distortion in the

programme sufficient to amount to a breach of standard G19.

The programme did not purport to quote the record verbatim, it notes, and given that

its focus was on the later DNA tests, which were central to the retrial of Mr

Dougherty, and not the identification evidence, the Authority considers that the

paraphrasing was adequate.

As for the other matters raised in the complaint, the Authority does not accept that

the programme required a contribution from the Police, or the complainant's family, on

the compensation issue, other than to record the reasons why compensation was

refused.

It considers the broadcast met this expectation with the back-announcement recording

the reasons given by the Minister in exercising his discretion.

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

Signed for and on behalf of the Authority

Lyndsay Loates
Member
21 May 1998

Appendix

Complainant X's Complaint to TV3 Network Services Limited – 28 December

1997

Complainant X of Auckland complained to TV3 Network Services Limited about a

20/20 programme, entitled "Burden of Proof", shown on 21 December 1997 beginning

at 6.30pm. The programme reviewed the case of David Dougherty, an Auckland man

who had been convicted of the rape of an 11-year-old girl, and had been imprisoned

for over three years. A re-trial of his case had taken place, and Mr Dougherty had

been acquitted. He had applied to the Crown for compensation over his initial

conviction and subsequent imprisonment. His application for compensation had been

rejected by the Minister of Justice. The programme reviewed all of these matters. It

noted that an appeal had been opened to fund a legal challenge to the exercise of the

Minister's discretion in rejecting the compensation application.

The complainant questioned why the programme did not contain any input from any

other participants in this case. Specifically, she noted that the family of the child, the

subject of the case, were never asked to contribute, that the police were not

represented, that neither the Minister nor any of the Cabinet were asked to comment.

Their decision not to compensate Mr Dougherty she wrote:

...was made on a broader amount of evidence following a very in-depth

investigation that took 5 months and included the Police Investigation.

The complainant also claimed that the programme did not adequately report in full the

identification evidence which by the child victim had given in court in relation to Mr

Dougherty's moustache.

The complainant wrote that Mr Dougherty had himself agreed with the child's

statement, and she referred to the trial notes. Referring to the child's identification

evidence about Mr Dougherty and his moustache, the complainant wrote on behalf of

her daughter that it was:

...not nice for anyone's words to be put forward without their consent or to

be rehashed to mean something else.

TV3's Response to the Formal Complaint – 9 February 1998

The broadcaster noted initially that the programme about which the complaint had

been made was identical to that programme broadcast on 24 April 1997, with the

exception of the studio introduction and conclusion, and with the excision of the

phrase "that new trial was this week". It commented that the same complainant had

previously lodged a formal complaint about the April programme, which had not been

upheld by the Broadcasting Standards Authority.

TV3 considered the complaints in the context of standards G19 and G20 of the

Television Code of Broadcasting Practice.

TV3 responded first by noting that the complainant asserted that the programme

should have quoted the child witness's full testimony in identifying David Dougherty.

It wrote:

In fact, what the programme stated with regard to this matter, by way of

commentary, was; "She says she saw a clean shaven man she recognised as

David Dougherty". The Committee [TV3's Standards Committee] observes

that the programme was not quoting court proceedings and what the

programme stated is a fair reflection of what the victim stated to Police.

In response to the complainant's claim that the programme should have sought

opinions from the child's family, the Police, the Minister or other Cabinet members,

TV3 linked the claim to the new information contained in the 21 December 1997

programme – the refusal of compensation to David Dougherty by the Crown. In

rejecting the claim, the broadcaster wrote that it considered that:

...what the programme stated with regard to the compensation to be a succinct

and fair summary of the decision released by the Minister of Justice, which did

not require any further input from other parties.

In denying that the programme breached standards G19 and G20 and, thus, in

declining to uphold the complaint, TV3 stated that it believed that "Burden of Proof"

was a fair and accurate report of the events and the High Court proceedings.

Complainant X's Referral to the Broadcasting Standards Authority – 26

February 1998

Dissatisfied with TV3's decision on her complaint, Complainant X referred it to the

Authority under s.8(1)(a) of the Broadcasting Act 1989.

She stated that she objected strongly to the commentator's statement in the

programme that the child witness saw a "clean shaven man". She wrote that the :

...statement was taken from her testimony and does not give a fair and honest

view of the "moustache" to the Public. [She referred to Judge's notes which she

enclosed.]

The complainant referred to the apparent contradiction in the broadcaster's letter of

response in which it stated on the one hand that it was not quoting from the court

proceedings, but another portion of the same letter in which it claimed that the

programme was a fair and accurate report of the events and the High Court

proceedings. The programmes, the complainant contended, was one-sided and

misleading. She continued:

Considering there was a strong feeling of being let down by the denial of

compensation, I questioned TV3 why there was no input or comment from any

of the parties involved in the compensation issue.

She also wrote:

There has been a lack of investigative journalism and TV3 persists in using an

inaccurate, unimportant aspect of the case [the child's testimony] for the

purposes of raising Public Sympathy.

TV3's Response to the Authority – 10 March 1998

In response to the Authority's request to the broadcaster for a tape of the programme,

TV3 supplied a VHS copy of the 'body' of the programme, together with a print-out

of the studio introduction and backannounce scripts. In doing so, it advised that the

master transmission tape of the telecast had been misplaced. It also advised that, as it

had indicated to the complainant, the 21 December programme was the same as that

broadcast on 24 April, with the exception of the exclusion of the words "that new trial

this week", and the studio introduction and conclusion.

TV3 advised that it had no further comments on the complaint.

Complainant X's Final Comment – 14 March 1998

The complainant wrote that it was of concern that TV3 had misplaced its copy of the

programme, and enclosed her own copy for the Authority's use.