BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The Christchurch Civic Creche case and the controversial circumstances surrounding

the conviction of Peter Ellis were featured in a 20/20 programme, broadcast on TV3 on

16 November 1997 at 6.30pm. The item reviewed the case and in its context the

credibility of child witnesses.

The Child Advocacy Trust complained to TV3 Network Services Limited, the

broadcaster, that the item was unbalanced and unfair, and that the only participant in

it who presented a significantly different viewpoint had his character assassinated

throughout the programme. The Trust complained that the result of the broadcast

was to create a climate in which it would be harder for children to disclose sexual

abuse for fear of not being believed.

TV3 responded that the programme contained justifiable statements, was not partial

or unfair, and was balanced by the participant referred to. It also submitted a

videotape of a 20/20 programme broadcast in the United States in support of the

programme's stance on the collection and use of evidence of child complainants.

Dissatisfied with the broadcaster's response, the Trust referred its 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 episode of 20/20 on 16 November 1997 focussed on the Christchurch Civic Creche

Case. It reviewed some concerns which had been raised about it in the community,

particularly the police investigation of the case, and the methods by which the

evidence of child witnesses in the case had been collected.

The Complaint

The Child Advocacy Trust claimed that the episode was biased, unbalanced, and

unfair to the families who had been involved in the case. It complained to TV3 that

the programme had created a climate in which it would be harder for children to

disclose sexual abuse for fear of not being believed. It also claimed that the only

person who appeared in the programme to present a view "significantly different from

the preconceptions of the programme makers", the detective who had led the

investigation, had his character assassinated throughout the broadcast.

The Trust wrote that the impression given in the programme was that the entire police

investigation was handled by one man, Detective Eade, and it denied that had been the

case. It contended that emotive descriptions of the detective used in the programme

were not evidenced by facts. Referring to the detective's admission during the

programme that he had been experiencing stress at the time of the investigation and

that his superiors had been concerned about him, the Trust wrote:

No credence was given to the stress involved in child abuse investigations,

particularly investigations of that magnitude. Being stressed in a high profile

complex case does not equal instability and incompetence. The accusations

that Detective Eade intended to 'get him hell or high water' and that he was on

a 'power and control trip' were not substantiated with evidence. The

comments about Detective Eade's relationships with mothers of child

complainants were not put in their appropriate time frame. While the ethics of

such relationships occurring at all are open to question, the fact that these

relationships occurred after the trial is significant in relation to the

professionalism of the investigation and the trial in question.

The complainant criticised the programme's perspective on the methods by which the

evidence of child witnesses of alleged sexual abuse was obtained in the case. It wrote:

The programme gave the persistent impression that the professionals involved

drove the children to make up experiences of sexual abuse and drove the parents

to believe them. In so doing, the programme attempted to undermine children as

credible witnesses, a myth that research has long since dispelled.

The Trust criticised what it called the one-sided nature of the programme and its

failure to introduce discussion about the plausibility of paedophiles, after it had

screened Peter Ellis's statements of innocence. It also noted that the detective's

explanations during the programme of the reasons why children recant after making

allegations of sexual abuse were exploited in later statements made by the

programme's presenter, appearing alone. The dynamics of child sexual abuse – the

ways in which it was kept secret, and the processes of disclosure – were irresponsibly

ignored, the Trust wrote, and that fitted with what it called the preconceptions of the

programme.

The complainant also raised a number of specific questions of the broadcaster relating

to any past or future action which the broadcaster intended to undertake to redress the

imbalance which, it alleged, had occurred in the programme's presentation of child

sexual abuse and its effects on the families of the alleged victims.

In conclusion, the Trust wrote:

...the media is a powerful medium and needs to be used with care and due regard

to public well being. The implications of the issues, so irresponsibly handled

within this programme, go well beyond the Ellis case. They are about the

credibility of children's statements about their experiences and the credibility of

the investigation and criminal justice around child sexual abuse.

TV3's Response to the Complainant

TV3 assessed the complaint under standards G4 and G6 of the Television Code of

Broadcasting Practice. These 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.

Dealing first with standard G4, TV3 stated that the detective had been given the

opportunity to respond to any allegations made against him. It contended that any

script lines concerning him could be justified. It also contended that the programme

made it clear that he was not the only officer involved in the investigation, and also

made it clear when his relationships with women associated with the case had

occurred.

Next, in dealing with standard G6, TV3 claimed that balance had been supplied to the

programme by the programme's interview with the detective. It denied that there was

any lack of impartiality or fairness in the remainder of the programme "as it deals with

fact as opposed to opinion".

The Referral to the Authority

In referring the complaint to the Authority, the Trust disagreed that the detective's

opportunity to respond to the allegations made against him was just or fair. It

asserted that some of the allegations made in the programme required answers that

involved wider and more complex issues than were implied by the questions asked,

and some involved information outside the knowledge of either the detective or the

programme-makers. Answers made by the detective to the programme's presenter,

the complainant wrote, were later followed by statements by the presenter, when

appearing alone, which were intended to discredit his answers. Throughout the

programme, the Trust claimed, there was a deliberate attempt to question the

detective's mental stability, investigative competence, and personal character.

Equally, the Trust challenged the broadcaster's claim that the programme had shown

balance, impartiality and fairness. It claimed that the programme had dealt

inappropriately with "associated facts", which included the ways in which children

reacted to and recalled abusive experiences, the knowledge that recantation was a

common part of the sexual abuse process, that delays such as had occurred in this case

were a routine part of such trials, and, finally, that there was well documented

evidence of children's ability to recall traumatic experiences.

TV3's Report to the Authority

In its report to the Authority, TV3 stated that it had carefully reviewed the

programme, and had been unable to find complex questions or deficient responses

which the detective involved had been unable to answer. It noted that the detective

had himself stated that he was the person who had dealt with all of the major parties

in the case. Therefore, the broadcaster alleged, it was incomprehensible that he would

not have been able to respond to any questions put to him about it.

TV3 denied that the presenter had aimed to discredit the detective in the programme,

and affirmed that the reporter's statements were accurate and justifiable. It also

asserted that the questioning of the detective's mental stability, competence, and

personal character in the programme was a matter of legitimate public interest.

Referring to the complaint about the way children react to and recall their abusive

experiences, TV3 stressed that the programme "relied entirely on the facts relating to

how the child complainants were interviewed about the allegations against Peter Ellis

and others". It emphasised that the programme was concerned with the investigation

of Ellis, and others; it was not a general treatise on how children revealed evidence of

abusive experiences.

Dealing with the programme's references to recantations made by some child

witnesses in the case, TV3 quoted comments made by the detective in the programme

which it said was evidence that he was informed on the matters put to him by the

interviewer, and was evidence that the programme acknowledged that recantations

were not necessarily to be taken at face value.

Responding to the Trust's complaint about the programme's comment on the time

lapse from investigation to trial, TV3 noted that the comment "simply stated" the

length of time taken by the process, and that there was nothing pejorative about so

doing.

The broadcaster stated that "all the information relating to the evidence and acquiring

of evidence from child complainants" which had been used in the programme could be

justified. In support of its position, TV3 provided a videotape of a programme on

this subject which had been broadcast on 20/20 in the United States. A copy of that

videotape was then made available to the Trust.

The Trust's Final Comment

The Trust emphasised that the portrayal of the detective in the programme was of

particular importance, in its view, as he was the only person who had personal

knowledge of the police investigation of the case, and was the only person whose

perspective was significantly different from the programme-maker's views. It claimed

that attacks on the detective's personal and professional integrity made by the

programme had undermined his position. The attacks, the Trust stressed, were of

major concern. They were not mitigated by the opportunity given to him to respond

to the allegations, and they were not balanced by the programme's interview with him.

In particular, the Trust referred to an allegation of sexual harassment made by the

mother of a child complainant against the detective, and to his relationship with two

other women involved in the case. These matters, once raised in the programme, could

not be answered satisfactorily by the detective, the Trust wrote. It also referred to

the inference of possible knowledge or bias of two jury members which had been

raised in the programme. The Trust commented on the legal opinion provided in the

programme by the Queen's Counsel who had acted for Ellis, and said the programme

was unbalanced in failing to provide another legal view.

The Trust complained that statements made by the detective about the stress,

personal demands and consequences of the case for him were then used by the

presenter to imply that he had been unstable, and should not have conducted the

inquiry. There was, the Trust wrote, no evidence to support that view. It argued that

stress arising in any professional involved in the investigation of child abuse

investigations did not prove that they were incompetent or unstable.

The Trust also argued that the programme discredited the detective's competence as a

police investigator. It illustrated that perspective by referring to the way the

programme used footage of Ellis, to the programme's failure to present any of the

parents of children whose evidence had been used in the case, and to its attempts to

undermine the credibility of the children who had been witnesses. As to the latter, the

Trust wrote:

...the verbal evidence of a victim is of paramount importance. The credibility of

children's statements is judged by many parameters and is never taken as

suggested without scrutiny. There was corroborative and physical evidence

obtained in this trial although children outside of an immediate complaint of

abuse often have no definitive physical or forensic findings.

The Trust emphasised the media's need to deal in a balanced way with controversial

matters, such as the sexual abuse of children, which it said was poorly understood by

the public. Here, the Trust wrote, the programme presented as inappropriate the

manner in which the evidence of the child witnesses had been obtained. It considered

it gave the impression that the professionals involved drove the children to make up

their experiences, and drove their parents to believe them. That view, the Trust

wrote, also coloured the reports on the parents' meetings, and their motivations for

being involved. It also contended that the programme exploited some of the issues

surrounding the way in which pre-school children expressed significant harmful

experiences, and in doing so put significant questions in the viewer's mind.

Despite the detective's attempts in the programme to explain in lay terms what was

involved in the process of recantation, and despite the Court of Appeal's acceptance

of the process in a particular instance in the case, the programme deliberately

misconceived the process, the Trust claimed.

The Trust again asserted that the programme's reference to the time taken by the

court processes in the case was not presented impartially.

With respect to the videotape of the American programme described earlier, the Trust

dismissed both the professional experience and the methods of the researcher who was

featured. In addition, it claimed, that video gave very inaccurate information about the

sexual abuse of children in day care centres, which had been recognised in the 1980s.

In conclusion, the Trust summarised the programme as having:

...used the unsubstantiated opinions of Ellis's supporters, allegations

questioning the role of Det. Eade in the investigation, and biased statements

about the case as a whole, to create a climate of disbelief over the justice of the

conviction of Ellis.

Further Correspondence

In a letter dated 20 April 1998, the Trust responded to the Authority's request for

amplification of its claim that there had been corroborative and physical evidence in

the Ellis trial, beyond the children's statements. The Trust wrote that the

corroborative evidence sought was not relevant to its complaint. The substance of its

complaint to the Authority, the Trust wrote, was the biased portrayal of the sexual

abuse investigation and the criminal justice system, and the damage that such bias

could cause sexual abuse complainants and their families.

The Authority, in a further letter to the Trust dated 28 April 1998, wrote that it

understood the complainant to have stated that there was corroborative and physical

evidence at the trial to support the Ellis conviction, and which was not referred to in

the 20/20 programme. If that was the complainant's assertion, the Authority

continued, it sought the Trust's comments, and some amplification of the

corroborative evidence which was available at the trial, as that would be relevant to the

allegations of standards breaches made by the Trust.

The Child Advocacy Trust wrote in a letter dated 11 May 1998 that the nature of

corroborative evidence in cases of alleged child sexual abuse was a complex matter. It

advised that it had accessed the transcript of the judgment of the Court of Appeal in

the Ellis case. The Trust initially referred to the judges' appraisal of the interviews of

the child witnesses, and the judges' comments that there was no solid basis to claims

that the children's evidence was contaminated by interviewing techniques, parental

hysteria or the like.

The complainant also referred to one of the charges on which Ellis was convicted and

the evidence available on that charge, as one example of corroborative evidence.

Noting that the judgment referred to other corroborative evidence, the Trust wrote

that a lack of forensic medical evidence was common in cases of sexual abuse and

could not be looked at in isolation.

In dealing with the recantation, or retraction of evidence, by one child witness, the

Trust also quoted extensively from the judgment, which referred to an independent

expert's doubt about the validity of the particular recantation. The programme-

makers, the complainant alleged, had used the retraction to support a view that Ellis

was innocent, and in doing so failed to mention the circumstances of the retraction.

The solicitors for TV3 in a letter to the Authority dated 2 June 1998 asserted that the

extract from the Court of Appeal judgment on which the Trust relied to assist with

the Authority's questions was "not in fact corroboration at all".

The Authority's Findings

In assessing this complaint, the Authority bears in mind that the field of investigation

into allegations of child sexual abuse is one in which even experts may hold widely

differing opinions. It is also one which attracts considerable public interest, as the

Ellis case has done. It is not the Authority's task to assess the relative merits of

conflicting schools of thought on issues raised in this programme, such as disclosure,

recantation, and the overall reliability of child witnesses. Rather, it is required to

evaluate the broadcast when it questioned the means by which a guilty verdict was

secured in the Ellis case, and whether it did so within the parameters of broadcasting

standards. In so doing, it appreciates that the programme was the result of robust

investigative journalism which included additional background to the Ellis case.

However, the Authority is mindful that investigative journalism is always subject to

the requirement for fairness and balance, and that those issues are sharply focussed on

in the context of this complaint.

The complainant asserts that the programme was made with a preconceived bias, and

advances a number of arguments in support of that view. The Authority considers

that these arguments fall within several broad areas of complaint, involving the Trust's

allegations of unfairness, lack of balance, and ensuing bias.

In essence, the Authority perceives these broad areas of complaint more specifically

to be:

• that the programme created a climate in which it would be harder for children to

          disclose sexual abuse for fear of not being believed,

• that it undermined the children as credible witnesses by giving the persistent

           impression that the professionals involved drove the children to make up their

           experiences,

• that the programme was unfair to the police by dealing unfairly with their

           investigation and in particular was unfair to Detective Eade in a number of

           respects,

• that the programme lacked balance, and
  
  
• that the programme was biased.

Accordingly, the Authority deals with the complaint under standards G4 and G6.

There are a number of aspects to the claim of lack of balance, which will be dealt with

collectively later in this decision. The Authority begins its determination with the

broad areas of complaint it has itemised above.

The first issue, it considers, is whether the programme can properly be regarded as

having created a climate which will make it more difficult for children to make

disclosure for fear of not being believed. If so, the question is whether that would

contravene the standards. The Authority is not persuaded on either proposition. The

focus of the programme was, it considers, the investigation and conviction of Peter

Ellis. Because sexual abuse charges were made, that inevitably raised issues related to

witness testimony from children.

In the Authority's view, given that the psychological methodology at the time

favoured the belief that a child's testimony was unreservedly truthful, such witness

testimony, when considered several years later in a less stringent climate could be

expected to be subject to a degree of re-evaluation and comment. That this occurred in

this programme was, it considers, unsurprising. However, nothing in the

broadcaster's treatment of the subject leads the Authority to conclude that the

broadcast would have the effect of making it more difficult for children to disclose

sexual abuse for fear of not being believed. Furthermore, it notes the statement in the

introduction to the programme confirming that methods of questioning of child

witnesses have changed in recent times. Consequently, the Authority concludes on

this aspect of the complaint that the programme was neither unfair in contravention of

standard G4 nor unbalanced in contravention of standard G6.

Next the Authority deals with the complaint that the programme undermined the

children as credible witnesses, an allegation which the complainant contended also

caused a degree of unfairness to the families concerned. This aspect of the complaint

raises issues of fairness under standard G4. However, given that the general approach

of the broadcaster was to cast doubt on the safety of the conviction, and that it

deliberately took a particular perspective, the Authority deals with the matter under

standard G6, as it considers the more appropriate question here is one of balance. It

does not uphold a breach of G6 on this aspect, since it considers that the focus of the

programme's thesis was not the credibility of the children so much as the means by

which professionals involved gathered their statements.

The Authority notes that the programme raised the issue of financial compensation

sought and paid to the families involved, and that this may have contributed to the

Trust's view that they were thereby unfairly dealt with. It considers, however, that

while the information about compensation may have raised the implicit question of

whether the prospect of financial gain could have influenced some parents, that was

not emphasised, nor was it advanced as an inevitable conclusion. Thus it finds that

this element of the programme did not breach G4.

The second major area of complaint, concerning the programme's alleged unfairness in

dealing with the police investigation and, in particular, the treatment of Detective

Eade, is now considered under standard G4.

The detective featured prominently throughout the item, and the Authority notes it

was largely through him that the programme's issues were raised and focussed. In the

Authority's view, the detective presented his information cogently and articulately.

He was familiar with the matters raised, and clear in his responses to the presenter's

questions. It appeared to the Authority that he clearly understood the nature of the

issues raised with him.

The Authority has considered carefully those parts of the programme dealing with the

stress the detective had experienced while working as an investigator on this case, and

the subsequent relationships he had with women involved in the case, following the

trial. He talked openly, it notes, about the stress he had experienced, but refused to

discuss the relationships which had been referred to. While the Trust alleges that the

detective could not satisfactorily answer questions about these personal relationships,

the Authority considers it was not unfair to put such questions to him, as a person

subject to a degree of public accountability, to assist in dealing with issues raised in

the programme.

The Trust argued that there was no evidence to support a view that Mr Eade had been

unstable and should not have conducted the inquiry. The Authority does not consider

that either of these propositions was logically inferred from the admission willingly

made by Mr Eade, that he had suffered from stress. It does not consider that his

competence as an investigator was thereby discredited. However, the stress he

described might have served to illustrate a state of mind which the programme

advanced as being shared by many in this field of investigation at that time, and in

particular in relation to the Ellis case, because of beliefs current at that time. The

Authority finds no breach of standards in this regard.

The wider issue is whether there was an overall unfairness to the police in terms of the

impression created about how the investigation was conducted. The complainant

suggested that the overall impression was that the investigation was essentially left in

the hands of one man, and that this resulted in its being unfair to the police. The

Authority does not draw that conclusion from the programme, and it takes the view

that the general viewer would not have done so either. Mr Eade appeared to be a

competent and confident spokesman who, because of the extent of his involvement in

the inquiry, could reasonably have been expected to carry the burden of any

explanation for the police. The Authority is not persuaded that there has been any

breach of standard G4 or G6 in this regard.

The next aspect of the complaint is that the programme lacked balance because it

failed to deal appropriately with the dynamics of the disclosure process, and that the

difficult issues which the disclosure process gave rise to were not appropriate

questions to put to the detective because they were outside his area of expertise.

Further, the Trust contended:

The programme gave the persistent impression that the professionals involved

drove the children to make up the experiences of sexual abuse and drove the

parents to believe them.

The Authority considers that the programme attempted to explore the ramifications of

the disclosure process, both as it was seen at the time of the Ellis investigation, and as

critics now describe it. The programme made it clear that the process was

problematic, and remains so. The Authority considers that it was legitimate for the

professionals' methodology at the time to be subject to scrutiny as it was the crucial

means by which Mr Ellis's conviction was secured.

Whether or not Mr Eade was competent to comment on this specialised area of

inquiry, the Authority is of the view that, as the leading police investigator, he could

be expected to have sufficient expertise to deal with the subject within the general

interest parameters of a current affairs documentary. Consequently it finds no breach

of either G4 or G6 as a result of his involvement in the programme as a spokesman for

the professionals involved in the children's disclosures.

The Authority considers that the programme could have given the impression that the

professionals concerned had acted in a way which might have led the children to give

unreliable testimony. However, there was a clear statement in the programme's

introduction that this trial was held amid a climate wherein children's testimony in

sexual abuse cases was paramount, unquestioned and not required to be corroborated.

That climate also saw children as needing active encouragement if they were to

disclose fully. The Authority understands from the programme and from the

subsequent correspondence that there is still disagreement among professionals over

whether such encouragement is desirable.

It notes, in passing, that the Trust and the broadcaster differ over the reliability of

research cited by the broadcaster in defence of the programme's line of argument. The

Authority does not consider it is competent to judge the merits of this argument, nor

does it consider it necessary to do so to consider this complaint.

It finds no breach of standard G6 on these aspects of the complaint.

Finally, the Trust claimed that the programme was biased because anecdotal evidence

wrongly invited a conclusion about connections between the prosecutor and the jury

foreman. Further, it claimed, the relationship between a jury member and a person

who had a direct interest in the prosecution case wrongly invited the conclusion, from

the anecdotal evidence, that the trial process was not impartial. That was further

exacerbated, the Trust wrote, by other comments about delays in the matter coming

before the court.

The Authority does not accept that these elements of the programme demonstrated

bias. Rather it considers they were included to advance aspects of the means by

which a possibly unsafe verdict had been arrived at, in the view of the programme

makers. As such, it considers they raised questions for the viewer, rather than

advancing a predetermined viewpoint.

In conclusion, the Authority observes in general terms that it believes the Ellis case to

be unique in the amount of interest and publicity accorded to it over the past eight

years. In an historical context, it appreciates that the Crown's case has been

compelling enough to prevail to date through every legal avenue available to the

defence. The Authority finds that in general terms this context is likely to be known

to the general viewer, and particularly likely to be known to viewers sufficiently

interested to watch this programme. It is satisfied that any possible imbalance would

be countered in this case by the profile which it has developed in the wider

community.

The Authority therefore concludes that overall, and taking into account the several

separate points raised by the Trust, the programme did not lack balance but rather to

some extent helped to provide a wider and thus more balanced perspective to the

various issues which this case has given rise to.

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

Signed for and on behalf of the Authority

Sam Maling
Chairperson
23 July 1998

Appendix

Child Advocacy Trust's Complaint to TV3 Network Services Limited – 27 November 1997

Child Advocacy Trust of Auckland complained to TV3 Network Services Limited

about a 20/20 programme, entitled "The Case in Question", shown on 16 November

1997 beginning at 6.30pm. The programme raised some of the concerns which had

been aired in the community about the Christchurch Civic Creche Case and the

evidence which had been offered in the case. It concentrated on the evidence given by

the child complainants of sexual abuse, the methods by which their evidence was

obtained, and the police investigation of the case.

The broadcaster, the Trust wrote, failed to maintain standards consistent with the

Television Codes of Broadcasting Practice. It claimed that the item was biased, unfair

to the families involved, and unbalanced. The Trust also contended that the effect of

the programme was to create a climate in which it would be harder for children to

disclose sexual abuse for fear of not being believed.

The Trust claimed that the only point of view which had been presented during the

programme which was "significantly different from the preconceptions of the

programme makers" had his character assassinated throughout the item. It emphasised

that the programme failed to refer to the distress of the children who went to court, to

that of their families, and to the damage done to them.

The complainant contended that the programme gave the impression that the entire

police investigation was handled by one man. The Trust wrote:

This was not the case. Lines like 'fighting for his own mental stability at the

time' and 'past signs of an obsessive personality' were not backed up with

facts. No credence was given to the stress involved in child abuse

investigations, particularly investigations of that magnitude. Being stressed in a

high profile complex case does not equal instability and incompetence. The

accusations that Detective Eade intended to 'get him hell or high water' and

that he was on a 'power and control trip' were not substantiated with

evidence. The comments about Detective Eade's relationships with mothers of

child complainants were not put in their appropriate time frame. While the

ethics of such relationships occurring at all are open to question, the fact that

these relationships occurred after the trial is significant in relation to the

professionalism of the investigation and the trial in question.

Contending that the programme gave the persistent impression that the professionals

involved drove the children to make up experiences of sexual abuse and drove the

parents to believe them, the Trust stressed that the effect was to undermine children

as credible witnesses. It commented critically on the programme's failure to discuss

"the plausibility of paedophiles" after the programme had referred to the accused's

statements of innocence. Further, the Trust criticised the programme's failure to

consider the "dynamics of child sexual abuse (the ways that it is kept secret and the

process of disclosure)" and claimed this was consistent with the "preconceptions of

the programme".

Finally, the complainant wrote:

...the media is a powerful medium and needs to be used with care and due

regard to public well being. The implications of the issues, so irresponsibly

handled within this programme, go well beyond the Ellis case. They are about

the credibility of children's statements about their experiences and the

credibility of the investigation and criminal justice around child sexual abuse.

Sensationalism and trial-by-media may make 'great ratings' but they damage

our children's safety.

TV3's Response to the Formal Complaint – 22 December 1997

TV3 considered the complaints in the context of standards G4 and G6 of the

Television Code of Broadcasting Practice.

With respect to standard G4, TV3 responded by noting that the investigator referred

to in the programme was given the opportunity to respond to any allegations made

against him. Equally, it claimed, any script lines involving him could be justified. That

he was not the only police officer involved in the investigation was made clear in the

programme, the broadcaster noted, and the programme also made it clear when his

relationships, referred to in the programme, occurred.

TV3 stressed that any comments made in the programme concerning the complainants

in the case, and their families, were accurate and justifiable.

In response to the Trust's claim that the programme breached standard G6, TV3

noted that the programme's concern was with the investigation, trial and conviction of

Peter Ellis. The broadcaster contended that the interview with the investigating police

officer supplied balance. It denied that the remainder of the programme lacked

impartiality or fairness as, it claimed, it dealt with fact as opposed to opinion.

Child Advocacy Trust's Referral to the Broadcasting Standards Authority – 20

January 1998

Dissatisfied with TV3's response to its complaint, the Trust referred it to the

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

The Trust denied the broadcaster's assertion that the police investigator was given a

just and fair opportunity to respond to the allegations made against him in the 20/20

programme. It wrote:

1) Some allegations involved questions that placed him in a position where an

answer involved far wider and more complex issues than those implied in the

question, and some of these lay outside of any facts or legal decisions available

to either [the detective or the programme maker].

2) Many of his answers were followed by statements made later by the

presenter appearing alone which aimed to discredit what he had said.

3) The programme deliberately sought to bring into question [the officer's]

mental stability, competence as a police investigator, and personal character

throughout.

The Trust also denied that the programme showed balance, impartiality and fairness.

It claimed that the programme dealt inappropriately with some associated facts.

Those facts included the ways children, particularly very young children, reacted to

and recalled abusive experiences, the knowledge that recantation was a common part

of the sexual abuse process, that court delays such as occurred in the case were a

routine part of the court process, and that there was well documented evidence of the

ability of children of all ages to accurately recall emotionally traumatic experiences.

TV3's Response to the Authority – 19 February 1998

Responding to the complainant's criticisms of its presentation of the "alleged overly

complex questions or deficient responses" from the investigating police officer, TV3

stated that it had carefully reviewed the item and had failed to find anything fitting the

complaint. It noted that the officer himself stated in the programme that he dealt with

the parents, children, doctors, interviewers and psychologists in the case; therefore,

TV3 responded, it was difficult to comprehend how he would not be able to respond

to questions put to him about the case.

The broadcaster also reported being unable to find any inaccurate or unjustifiable

statements, or instances where the presenter had aimed to discredit the police officer,

in the programme.

In dealing with the programme's emphasis on the investigating officer's mental

stability, competence and personal character, TV3 observed that these were matters of

legitimate public interest . It further noted that the officer acknowledged himself that

his superiors were concerned about the stress he was suffering.

Dealing with the complaint about the interviews of child witnesses, the broadcaster

contended that all the statements and comments in the programme were patently

justifiable. It wrote that the programme:

...was concerned with the investigation of Peter Ellis and others. It was not and

never purported to be a treatise on how children may or may not reveal evidence

of abusive experiences.

Responding to the complaint that the police officer was placed in a position where his

answers involved complex issues and sometimes lay outside facts available to him,

TV3 pointed out that the officer made it very clear by his comments that he was

informed on the matters put to him by the interviewers.

The broadcaster noted that the programme simply stated the length of time that the

investigation and trial had taken and that there was nothing pejorative in its statements

about the lengthy nature of the case.

Referring to the Trust's reference to evidence that children were able to be accurate in

their recall of traumatic experiences, the broadcaster emphasised that its information

relating to the evidence, and the acquiring of evidence, from child complainants could

be justified.

TV3 provided the Authority with a copy of a tape of another 20/20 programme

broadcast in the United States, dealing with the credibility of child witnesses in cases

involving alleged abuse, and stated that it would be relying on the information revealed

in the programme. A copy of the tape was then provided to the complainant.

The Trust's Final Comment – 1 March 1998

The complainant denied that TV3 had dealt justly and fairly with the detective in the

programme. It stated that his position had been undermined by direct attacks in the

programme on his personal and professional credibility. These attacks were of

concern, the complainant wrote, and were not balanced because he was interviewed in

the programme or because he was given the opportunity to respond to the allegations

which had been made against him. The Trust wrote that the concern, that arose from

the attacks on the detective's credibility, was that the portrayal of him:

...was of particular importance as he was the only person who had personal

knowledge of the police investigation into the case and was the only person in

the programme whose information was significantly different from the views of

the makers.

The Trust provided three specific examples from the programme which, it claimed,

illustrated the impossibility of the detective, as the only person in the programme

presenting a different view, being able to answer satisfactorily allegations made during

the programme. Two of the examples related to the detective's personal conduct. The

third example was a reference to the questioning in the programme of the jury

selection and the programme's use, in that reference, of the views of a Queens Counsel

who had later acted for the accused in the Civic Creche Case. In regard to that

example, the Trust alleged that the programme failed to seek another legal view and

should also have provided some evidence or knowledge or legal standards and Justice

Department policies.

Referring to answers given by the detective in answer to questions about the stress,

personal demands and the consequences of the case for him, the Trust claimed that the

presenter in the programme programme, when appearing alone, used those answers to

imply that the detective was unstable and should not have conducted the

investigation. In using specific examples of statements made by the presenter, the

Trust emphasised that:

There was no evidence given to support this view of Det Eade and no credence

given to the stress involved in the investigation of child abuse allegations,

particularly of this magnitude and profile. Such stress does not prove that the

professional affected is incompetent or unstable.

The complainant elaborated upon its complaint that the programme also deliberately

questioned the detective's competence as a police investigator. It provided examples

of the programme's presentation of the criminal case as having nothing to do with the

sexual abuse of children, but to do with the people who decided that the sexual abuse

had happened. That presentation of the case, the Trust claimed, was by way of the

opinions of Peter Ellis, the person convicted, and of parents who held similar

opinions. There were no parents included whose children had been part of the two

trials which had occurred.

In the programme's further questioning of the policeman's competence, the Trust

wrote, it portrayed him as having believed the evidence of the child witnesses of

sexual abuse, when the very credibility of those children as witnesses was undermined

by the programme. The programme had referred to child sexual abuse cases in other

countries where questions had been raised about the veracity of evidence given by

children. In the programme's reference to "medical, forensic or corroborative evidence"

not being required, the Trust wrote:

...the verbal evidence of a victim is of paramount importance. The credibility of

children's statements is judged by many parameters and is never taken as

suggested without scrutiny. There was corroborative and physical evidence

obtained in this trial although children examined outside of an immediate

complaint of abuse often have no definitive physical or forensic finds.

In illustrating its complaint that the programme failed to display balance, impartiality

and fairness in dealing with the controversial question of the alleged sexual abuse of

children, the complainant dealt first with the programme's approach to the manner in

which evidence was obtained from the child witnesses. It referred to the:

...persistent impression that the professionals involved drove the children to

make up experiences and their parents to believe them

The Trust wrote that the view that the professionals were fuelling the investigation

was also used to colour the portrayal of the early meetings of the parents of children

allegedly involved, and the allegation that access to Accident Compensation

Commission funding might be available for the "victims".

The Trust also referred to the differences between pre-school and older children which

necessitated different methods being used in the obtaining of evidence from young

children in cases such as this. Those differences necessitated the very methods which

were criticised in the programme, the complainant alleged.

Criticising the broadcaster's use of information about the number of child witnesses

who had apparently recanted from their earlier statements, the complainant stated that

recantation was not uncommon, there were many reasons for it, it was never taken at

face value and the complexities of it had been accepted by the Court of Appeal.

Despite this knowledge, the Trust stressed, the broadcaster deliberately misconstrued

the process of recantation in its allegations in the programme.

In asserting a lack of impartiality in the programme, the Trust relied in part on the

broadcaster's comments on the lengthy nature of the case, and its assumption that

"justice delayed is justice denied". That, the complainant wrote, ignored the lengthy

investigation often required in a sexual abuse case involving a child. Here, the 18-

month period which elapsed from the investigation to the conviction, given the

complexities of the case, could not be seen as reflecting on the competence of the

investigators. The Trust also denied that the exclusion of many potential child

witnesses reflected on the investigator's competence, as had been implied in the

programme.

In response to TV3's reliance on a video of a 20/20 programme, broadcast in the

United States, which reported on American concerns about the collection and use of

evidence of child witnesses in cases alleging sexual abuse, the complainant wrote:

...the video presented one side of the large body of evidence into the way

children respond to adult questioning and the way any traumatic events are

recalled. SC [the researcher featured in the American video] has no experience of

working with sexually abused or children traumatised in other ways in real life.

The methods he is known to use in repeated questioning of young children is

also something that has no comparison to the accepted methods of interviewing

children by the statutory agencies in this country now or at the time of the

Christchurch Creche case.

The video also gave very inaccurate information about the sexual abuse of

children in day care centres which was recognised initially in the 1980's. There

has been a careful evaluation and research into this evidence, and concerns that

have arisen have led to standards being set for improvement in the protection of

children in such facilities.

In conclusion, the Trust wrote that the programme:

...used the unsubstantiated opinions of Ellis's supporters, allegations

questioning the role of Det. Eade in the investigation, and biased statements

about the case as a whole, to create a climate of disbelief over the justice of the

conviction of Ellis. It has contributed to the inaccurate media coverage of the

validity of both the High Court and Appeal Court decisions and has erred from

the principle requirement for fairness and impartiality in reporting such matters

to the public.

Further Correspondence

In response to a letter from the Authority dated 5 March 1998 which indicated that it

was inclined to uphold aspects of the standards complaint and invited submissions on

penalty, TV3 in a letter dated 10 March 1998 and in subsequent letters sought details

of the basis of the Authority's inclination to uphold aspects of the complaint. The

Solicitors for TV3, in a letter dated 9 April 1998, requested the opportunity to appear

before the Authority to argue TV3's case. The Authority responded to that and

several subsequent letters that a decision on the necessity of holding a hearing had not

been made, and that additional information relating to the complaint had been sought

from the complainant.

In a letter dated 16 April 1998, the Authority requested amplification of the

complainant's claim that there was corroborative and physical evidence in the Ellis

trial, beyond the children's statements. The Child Advocacy Trust, in a letter dated

20 April 1998, responded that the corroborative evidence sought by the Authority

was not relevant to its complaint. The substance of its complaint, the Trust wrote,

was the biased portrayal of the sexual abuse investigation and the criminal justice

system and the damage that such bias could cause sexual abuse complainants and their

families. The Authority emphasised, in a letter dated 28 April 1998, that it

understood the complaint to state that there was corroborative evidence at the trial to

support the Ellis conviction which was not referred to in the broadcast. The

Authority stressed that it wished to establish whether that was the Child Advocacy

Trust's assertion and, if so, sought its comments and some amplification of the

corroborative evidence available at the trial.

Replying in a letter dated 11 May 1998, the Child Advocacy Trust wrote that:

The nature of corroborative evidence in cases of alleged child sexual abuse is a

complex matter.

Noting that it had accessed the transcript of the judgment of the Court of Appeal in

the Ellis case, the Trust initially referred to the judges' appraisal of the interviews of

the child witnesses, and their comments that there was no solid basis to claims that

the children's evidence was contaminated by interviewing techniques, parental

hysteria or the like. The Trust also referred to one of the charges on which Ellis was

convicted and the corroborative evidence available on that charge, as one example of

corroborative evidence. Noting that the judgment referred to other corroborative

evidence, the Trust wrote that a lack of forensic medical evidence was common in

cases of sexual abuse and could not be looked at in isolation. Finally, in dealing with

the recantation, or retraction of evidence, by one child witness, the Trust quoted

extensively from the judgment which referred to an independent expert's doubt about

the validity of the particular recantation. The programme-makers, the complainant

alleged, used the retraction to support their view that Ellis was innocent, and failed to

mention the circumstances of the retraction.

The extract from the Court of Appeal judgment on which the Trust relied was not in

fact corroboration at all, the Solicitors for TV3 replied in a letter to the Authority

dated 2 June 1998. They wrote that:

...the evidence referred to was admitted only to refute the defence allegation

that two complainants made up the story... That is an altogether different

thing from corroborative evidence. It is not "one example of corroborative

evidence". There was no corroborative evidence.

TV3's Solicitors claimed that the complainant's concern about the programme was

based on TV3 having failed to sufficiently incorporate any of the Court of Appeal

judgment in the programme. However, they continued, notwithstanding that the

judgment was entirely the basis of the criticism, the Trust had specifically written that

its complaint went well beyond the Ellis case, reflecting on the investigation and

criminal justice processes around child sexual abuse. That, wrote TV3's Solicitors,

was patently not so.