BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

New Zealand Police Northern Region and Television New Zealand Ltd - 1998-094, 1998-095

Members
  • S R Maling (Chair)
  • R McLeod
  • L M Loates
  • J Withers
Dated
Complainant
  • New Zealand Police Northern Region
Number
1998-094–095
Channel/Station
TV One
Standards Breached

Summary

An item broadcast on One Network News between 6.00–7.00 pm on TV One on 12 March 1998 reported on the Auckland trial of Malcolm Rewa who had been charged with murder, and several counts of sexual violation. The item referred to evidence given that day by a witness who had been raped by Rewa ten years previously. Footage showed street signs and the streets where the witness had lived and was attacked, and the gang safe house where she was taken after the attack. The report described her as the girlfriend of a gang member, and used her first name. A complaint was made to the TVNZ newsroom by a family member shortly after. The report was repeated unchanged during Tonight, broadcast at 9.30 pm the same night.

On behalf of the woman, the Co-ordinator of Police Media Services for the Northern Region of New Zealand Police, complained to the Broadcasting Standards Authority, under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast of the items on each occasion breached the woman’s privacy. The police also complained to Television New Zealand Limited, the broadcaster, separately.

In its response to the Authority, TVNZ agreed that the reports breached the woman’s privacy, because of their use of her name, and were a serious error. It emphasised that its journalists were aware of the automatic right to name suppression of rape victims, and apologised without reservation for the distress caused to the woman.

For the reasons below, the Authority upholds the complaints that A’s privacy was breached and orders Television New Zealand Limited to pay compensation to A in the sum of $3,000.00, and costs to the Crown in the sum of $500.00.

Decision

The members of the Authority have watched a tape of the items complained about, and have read the correspondence (which is summarised in the Appendix). On this occasion, the Authority determines the complaints without a formal hearing.

News reports of the Auckland trial of Malcolm Rewa, who had been charged with murder and several counts of sexual violation, were broadcast on One National News and Tonight, commencing at 6.00 pm and 9.30 pm respectively, on TV One on 12 March 1998. Both reports referred to evidence given that day in court by a woman witness (whom the Authority refers to as "A") who had been raped by Rewa some ten years previously. The items described A as the girlfriend of a gang member at the time of the attack, and broadcast her first name. They also described, and showed footage of, street signs and streets where she had lived and was attacked, and where she was taken after the attack.

The Complaints

On behalf of A, the Co-ordinator of Police Media Services for the Northern Region, New Zealand Police (Senior Sergeant Gary Allcock), complained to the Broadcasting Standards Authority under s. 8(1)(c) of the Broadcasting Act 1989 that A’s privacy had been breached by the broadcasts. As a victim of sexual violation, A’s name was protected from publication under s.139 of the Criminal Justice Act, he wrote. The broadcasts contained a number of critical factors which enabled a significant group of people, including friends and work colleagues, to identify A, he continued. Those factors were footage of two streets and two street signs (where she had lived and was attacked, and where she was taken after the attack); the report that her boyfriend was a gang member; and, finally, the use during the item of a quote from Rewa’s evidence in which he reportedly said "See you [name]".

The Co-ordinator stressed that A’s birth name was a longer version of that used in the reports, but that she had been known by the shorter name for as long as she could remember. A’s distress at being identified, he maintained, was compounded by her fear of reprisals from gang members with whom her association had been brief, and which had ended ten years previously. Now, as a result of the identification, friends and colleagues knew about a part of her life she wished to forget.

Furthermore, the Co-ordinator wrote, A’s distress was aggravated by the fact that a family member spoke to a person in the TVNZ newsroom shortly after the 6.00 pm broadcast. TVNZ was told that the report made it clear who was being referred to and that A was upset. The TVNZ person did not call back, despite indicating that he would, the Police wrote. The report was then repeated during the later evening news service.

A copy of the Media Control Directions which had been issued on 9 March by the presiding judge in the Rewa trial was made available to the Authority. In these, the media had been reminded of the statutory prohibition against the publication of names or identifying particulars relating to complainants of alleged sexual offending. On the day after the broadcast of the news items, the judge had ordered a prohibition on the publication of photographs or names of streets where complainants were attacked, and of names of complainants, because he said he was "sufficiently concerned about the marginality of the case".

In its response, TVNZ concluded that the use of A’s name breached her right to name suppression. It also concluded that Privacy Principle (i) and perhaps Privacy Principle (v) of the Privacy Principles, promulgated by the Authority in an Advisory Opinion issued in 1996, had been infringed by the disclosure of A’s name. The broadcaster emphasised that the news reports of the other critical factors outlined by the Police had breached A’s privacy only because of their association with her name.

TVNZ acknowledged the serious error which had occurred as a result of its news reports. Moreover, it stressed, its journalists were aware of the automatic right to name suppression attached to rape victims.

In a further comment, the Police Co-ordinator argued that the broadcaster’s breach was not merely that A’s personal privacy was violated, but that the detail in the broadcast might have exposed her to reprisals from gang members. Further, he reiterated, having been informed of its breach after the first news item, TVNZ had replayed the footage unchanged in the later news service.

In reply, TVNZ underlined that it had upheld the complaint as a breach of A’s privacy because her name had been used. The street references and A’s former gang association had relevance to the complaint only because of their association with the use of her name, it argued. Alone, it contended, the references and association would not constitute a breach of privacy. Furthermore, the broadcaster wrote, the two separate news reports did not represent two breaches of privacy and two separate offences. The same item from the court case was repeated on the later news bulletin because there was no realisation by the broadcaster that a breach had taken place, it wrote.

The Authority’s Findings

The Authority begins its consideration of the complaints by referring to its Privacy Principles which were outlined in an Advisory Opinion in 1996. The complaints thus far have made reference to Principles (i) and (v) which provide:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address, and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

The Authority has no difficulty in reaching the conclusion that the use of A’s name in the news reports was clearly in breach of Privacy Principle (i). Having reached a conclusion on Privacy Principle (i), the Authority does not consider it necessary to consider the application of Privacy Principle (v), as referred to by TVNZ. While A’s name may read like a diminutive and, the Authority notes, TVNZ continues to refer to it as a nickname, it is the Authority’s view that the name both read and broadcast during the reports was to all intents and purposes her name, since it was the only name she had ever been known by. The use of her name in the broadcasts, in the Authority’s view, thus exacerbated the breach of privacy.

Next, the Authority considers whether the breach of privacy which occurred resulted from the broadcast of A’s name only, as contended by TVNZ. Alternatively, the Authority is urged by the Police Co-ordinator to consider that the breach occurred as a result of the broadcast of the critical factors, referred to earlier in this decision, the combination of which resulted in a significant group of people being able to identify A. In this instance, the Authority decides that the breach of A’s privacy occurred primarily through the broadcast of her name. The Authority takes into account that breach, and the remaining "critical factors", as matters relevant to the context of the breach, when deciding matters of penalty.

A further matter to be decided by the Authority is whether there were two separate news reports representing two breaches of privacy and thereby two offences, as argued by the Police. Alternatively, as maintained by TVNZ, the Authority considers whether there was one news item about that day’s court proceedings which constituted one breach of privacy and was reported on two news broadcasts. The Authority decides that there were two separate broadcasts which were presented on separate news bulletins at different times on the same evening to probably different audiences. In the Authority’s view, those separate broadcasts represented two breaches of A’s privacy. The later breach occurred notwithstanding the complaint lodged by a member of A’s family with TVNZ’s newsroom shortly after the first broadcast which breached A’s privacy. The Authority notes that the matter of that complaint on behalf of A has not been addressed by TVNZ either in its response to the complaint or in its submissions to the Authority. The effect of the two broadcasts and two breaches of privacy is dealt with later in this decision.

 

For the reasons set forth above, the Authority upholds the complaints that broadcasts on TV One on 12 March 1998 breached A’s privacy.

Having upheld a complaint, the Authority may make an order under s.13(1) and award costs under s.16(4) of the Broadcasting Act 1989. The Authority has sought submissions from the broadcaster on the question of penalty and has received submissions from the Police Co-ordinator on behalf of A.

In its consideration of the action taken by TVNZ, the Authority notes that the broadcaster upheld the complaint on the basis of the use of A’s name, and its reporter apologised to A via a police representative. To the Authority, TVNZ acknowledged its serious error in overlooking the consequences of using A’s name in its reports and emphasised its awareness of the automatic right to name suppression of rape victims. In reply, the Police Co-ordinator argued that the broadcaster’s response was insufficient. A, he explained, only gave evidence because she was assured her identity would be protected. Her privacy was important to her, he continued, and she relied upon the statutory protection afforded to her under the Criminal Justice Act.

What was required, the Police submitted, was an order for payment of the maximum compensation available under the Broadcasting Act 1989 to A on the basis of two breaches of her privacy by TVNZ. The broadcaster, Senior Sergeant Allcock wrote, had committed two separate and distinct offences, the second after being alerted to the consequences of the first broadcast. Further, he stressed, its breach was not merely of A’s personal privacy, but might have exposed her to personal danger in the form of gang reprisals because of the reports that she gave evidence. On A’s behalf, the Police also sought compensation for A’s loss of wages for time taken off work as a result of stress engendered by the two broadcasts, and costs for her legal fees incurred in pursuing the complaints.

Responding, TVNZ questioned the Police Co-ordinator’s submissions on penalty and costs. The submissions had been supported, it argued, with further references to the contextual matters which TVNZ stressed by themselves did not constitute breaches of privacy. A was entitled to have her identity protected, TVNZ argued, not to be protected from the reporting of salient facts of a past life given in a public court hearing, if there was no appreciable risk that the reporting would be likely to lead to identification. Thus, for example, A’s fear of gang reprisals was not a relevant consideration in the Authority’s determination of penalty, for the evidence of her former gang association was not protected by itself, the broadcaster continued.

TVNZ maintained that there were not two breaches of privacy. It contended that the context of the Broadcasting Act was inappropriate for the recompense of loss of wages or legal costs.

In its consideration of penalty in these complaints, the Authority considers first the submission that the broadcaster should pay the costs incurred by A resulting from its breach of her privacy. The Authority notes that s.16(1) of the Broadcasting Act 1989 empowers it in any proceedings to "order any party to pay to any other party such costs and expenses…as are reasonable". In this instance, the Authority notes that A is not directly a party to the proceedings. The complaints have been made "on her behalf" by the New Zealand Police. The Authority leaves open the question of whether s.16(1) of the Act does extend to the costs of persons on whose behalf a complaint is made. But where, as here, a party acting is in fact a state organisation such as the police, no doubt discharging what it saw as its public duty, the Authority is not persuaded that an order for costs would be appropriate.

The Authority considers however that the broadcaster’s initial breach of A’s privacy was a serious one and was exacerbated by its second breach the same evening. In the Authority’s view, the situation calls for an amount of compensation to be awarded to A. The factors which affect the Authority’s award of compensation are that A was a victim of rape who was clearly entitled to the protection provided by the provisions of the Criminal Justice Act which TVNZ, as an experienced broadcaster, would have been aware of. Further, the documents provided to the Authority disclose the Media Control Directions of the presiding judge in the trial which had been issued some three days before the broadcasts, and which would have been known to the broadcaster. In addition, the Authority views seriously the fact that TVNZ breached A’s privacy on two occasions during the same evening without, it appears, any mechanisms in place to review its procedures, even after a complaint had been made on A’s behalf. The Authority also notes the submissions which have been made on A’s behalf in regard to the stress she experienced after viewing the broadcasts, and in regard to her fear of personal danger from gang reprisals. In mitigation, the Authority appreciates that the Rewa trial was a notorious and high profile case which would have generated intense media and viewer interest. The Authority also takes into account penalties which have been imposed by it in other instances involving a breach of privacy.

Having reviewed the material provided to it, and taking into account the family member’s telephone call to TVNZ after the first broadcast and the judge’s media direction three days prior to the broadcasts, the Authority considers that the broadcaster’s actions call for an award of costs to the Crown under s.16(4).

Orders

The Broadcasting Standards Authority orders Television New Zealand Limited under s.13(1)(d) of the Broadcasting Act 1989 to pay, within one month of this decision, the sum of $3,000.00 to the New Zealand Police, Northern Region, for payment to A in compensation for breaches of her privacy. The Authority further orders Television New Zealand Limited to pay, within one month of this decision, costs in the sum of $500.00 under s.16(4) of the Act to the Crown.

Signed for and on behalf of the Authority

 

Sam Maling
Chairperson
27 August 1998

Appendix

New Zealand Police Northern Region’s Referral to the Broadcasting Standards Authority and to Television New Zealand Ltd – 6 April 1998

The Co-ordinator of Police Media Services for the Northern Region, New Zealand Police (Senior Sergeant Gary Allcock), complained to the Authority about two broadcasts on TV One on 12 March 1998. The broadcasts were on One National News at 6.00 pm and on Tonight at 9.30 pm. The broadcasts contained reports about the Auckland trial of Malcolm Rewa, who had been charged with murder, and several charges of sexual violation.

The Co-ordinator, Senior Sergeant G S Allcock, argued that the privacy of a woman witness in the case had been breached by the broadcasts. The woman witness (whom the Authority refers to as "A") had given evidence in the case. The complaint had been lodged by the Police on behalf of the woman, who had been a victim of sexual violation and whose name was protected from publication under s.139 of the Criminal Justice Act 1985.

The broadcasts contained a combination of factors which enabled a significant group of people to identify A from the news items, the Police wrote. Those people included friends and work colleagues who might have known that A was giving evidence in court, the Police continued, but did not know any of the details. The use of her name in the news item prevented A from being able to deflect any questions which might otherwise have arisen, they stressed.

The critical factors arising from the broadcasts, the Police wrote, were:

Footage, including the street sign, of the street where A had been attacked. That was also the street where she lived.

Footage, including the street sign, of the street where she had been taken after the attack, for security and for recuperation.

Reference to the fact that her boyfriend was a member of the Highway 61 Gang.

The use of a quote from the evidence where Rewa, the accused, had said "See you [name]".

The Police pointed out that A’s name was in fact a longer version of that used in the broadcasts but that she had been known by the diminutive "for as long as she could remember". Further, they wrote, her business card showed the diminutive as her name.

A’s distress in being identified by friends and work colleagues had been compounded, the Police contended, by fear of reprisals from the Highway 61 Gang. Her association with that gang had been brief and had ended ten years before. No-one in her circle of friends or work colleagues knew of that former association. Not only, they continued, did A have to deal with the fear of reprisal from gang members, but she had to deal with the fact that people now knew about a part of her life that she wished to forget.

The Police emphasised that A’s distress, resulting from the breach of her privacy, was aggravated by the fact that a member of her family spoke to a male person in the TV One news room shortly after the 6.00 pm broadcast. That person, on being told that the item had made it clear who was being referred to and that A was distraught about the broadcast, indicated that he would check the tape and would call back once it had been viewed. Despite being given a contact name and telephone number which he had requested, he did not call back. The item was re-broadcast on the 9.30 pm news, unchanged.

The distress caused to A by the broadcasts had been extremely severe, the Police maintained. She was off work, her partner had left her, and she was obviously concerned about repercussions arising from the disclosure of her identity.

Attached to the Police complaint was a copy of the Media Control Directions issued by His Honour Mr Justice Anderson on 9 March 1998 in the Rewa trial. In addition to prohibiting the photographing of exhibits and the taping of proceedings, the judge stated:

I also remind the media that there is a statutory prohibition against the publication of the names or any identifying particulars relating to complainants in cases of alleged sexual offending.

On the day after the broadcasts complained of, His Honour made the following order:

Whether that broadcast contravenes the statutory prohibition against the publication of identifying particulars of complainants is not something that I would presently decide, but I am sufficiently concerned about the marginality of the case to make an order, which I now make, to subsist until further order of the Court, prohibiting publication of the photographs or names of residential streets where complainants were attacked, and the publication of any of the names, including first names or nicknames of complainants.

The Police also attached to their complaint a copy of the statement of A’s sister in which she described her contact with TVNZ, following the 6.00 pm broadcast.

A copy of Mr Justice Anderson’s order, granting leave to A to publish such particulars as might otherwise be in breach of s. 139 of the Criminal Justice Act, to enable her to lodge a complaint with the Broadcasting Standards Authority about the two news broadcasts, was also attached to the Police complaint.

TVNZ’s Response to the Authority – 27 April 1998

TVNZ considered the complaint under section 4(1)(c) of the Broadcasting Act, and standard G4 of the Television Code of Broadcasting Practice.

It advised that it had looked carefully at the items and had focussed on the use of A’s diminutive, or what it referred to as her nickname, during the commentary. The use of the name, it concluded, breached the witness’s automatic right to name suppression and infringed the Authority’s Privacy Principle i) which provides:

i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

TVNZ conceded that the use of A’s name might also have infringed the Authority’s Privacy Principle v), in disclosing the name of someone (A) who might be identified by the nickname.

The broadcaster accepted that, by using her nickname, the items failed to protect A’s anonymity. Because the nickname was used, TVNZ wrote, it agreed that the other three critical factors listed in the complaint were also breaches of A’s privacy "only because of their association with the nickname".

TVNZ contended that, because television was a visual medium, understanding of complex rape cases, such as this one, was enhanced by appropriate general footage of streets and neighbourhoods. Such footage, it noted, was standard practice. It questioned whether the footage of the streets which had been used would, by itself, identify the victim now. Equally, TVNZ maintained, the reference to A’s gang associations:

…would do little to identify her now; indeed the reference to the gang was a significant piece of evidence in that she was taken after her ordeal to a safe gang house.

The purpose, TVNZ submitted:

…of a suppression of identity of a victim in a rape case is to protect her identity at today’s date (that is, the date of the trial). Legitimate fleeting references to a few factors in an unnamed person’s life ten years ago need not, we believe, contribute to the identification of that person on the date when she is called upon to give evidence in court.

It continued:

…such scenes do not identify victims and are part of the legitimate reportage of events described in open court. They become unacceptable only when some other factor (in this case the use of a nickname) serves to build a picture of a victim by which she can be identified.

Acknowledging serious error on this occasion and commenting that it was not the intention of the broadcaster to breach the name suppression requirement, TVNZ emphasised that its journalists were aware of the automatic right to name suppression attached to rape victims. It wrote:

The nickname was used in open court; the consequences of using it in the report were simply overlooked.

The broadcaster apologised to the witness. It noted that its reporter had asked the police to convey his deep personal regrets to A when he heard the day after the broadcasts "that some distress had been caused".

TVNZ concluded that the complaint under standard G4 of the Television Code of Broadcasting Practice would be upheld, for it followed that:

…in finding a breach of privacy we must also conclude that the witness was treated unfairly.

The Police’s Final Comment – 8 May 1998

On behalf of the Police, Senior Sergeant Allcock requested the Authority to consider the following factors:

1)   The breach by the broadcaster was not merely one of personal privacy, but might have exposed A to personal danger in the form of reprisals from Highway 61 Gang members. The television references were sufficiently detailed that persons who knew A at that time of her life would be aware of who was being referred to. Her association with the gang occurred when she was very young, and that part of her life had been put behind her. Now, because of TVNZ’s actions, she was fearful of reprisals from the gang because she gave evidence, and had to adjust her life accordingly.

2)   Notwithstanding that TVNZ had been informed after the first news broadcast of the fact that A was distraught over the breach of her privacy, and that she was concerned because she was giving evidence against a gang member at the trial, it replayed the same footage later on the same night unchanged.

Stressing that when A had completed giving her evidence after an emotionally harrowing and draining day, the Police wrote, she had left the courtroom (to use her words) "feeling like a million bucks". She was at last able to put the horror of the rape behind her and start getting on with her life, they continued. That was destroyed when she saw the TVNZ news that night, Mr Allcock stressed:

She was totally devastated, any therapeutic process that had occurred by her giving evidence in court was totally and completely erased.

He emphasised that A only gave evidence because she was assured that her identity would be protected. Had she had any idea or forewarning of the way the matter would be reported by TVNZ, the Police continued, she would never have given evidence. She would have simply learned to live with the fact that the accused Rewa raped her and got away with it. That, Mr Allcock on behalf of the Police contended, indicated how importantly she viewed her privacy and how much she relied on the statutory protection afforded her under the Criminal Justice Act. It also indicated the extent of her fear of reprisals from the accused and from gang members, he concluded.

Addressing the question of penalty, the Police noted that A had, through being absent from work on stress leave, lost wages amounting to $750.00. Mr Allcock on behalf of the Police stressed that there had been two separate and distinct offences, the second one after the broadcaster had been alerted to the consequences of the earlier news item. Noting that the Authority had power to order payment of compensation to a maximum sum of $5,000.00, he sought a penalty of $5,000.00 for each offence.

Referring to TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720, the Police noted that case also involved a breach of privacy arising out of a rape trial. Here, they submitted, the present case was more serious in two respects. Firstly, it was more blatant as A was easily identifiable, the Police maintained, due to the four critical factors which they had identified in their initial complaint. Secondly, the breach was aggravated by the television station showing the footage again, having been put on notice that a prima facie breach of the Broadcasting Act had already occurred.

On behalf of A, Mr Allcock wrote, the Police were also seeking the sum of $3,000.00 for A’s legal fees incurred as a result of the breach by TVNZ.

TVNZ’s Response to the Final Comment – 26 May 1998

TVNZ noted that Senior Sergeant Allcock, on behalf of the Police, had supported his submissions to the Authority on the questions of penalty and costs by referring to both the two street signs used in the broadcast and the gang affiliation of the victim’s then boyfriend. The Sergeant’s remarks, TVNZ contended, obscured the real issue of concern in the complaint. It stressed that the broadcaster upheld the complaint primarily because the victim’s abbreviated Christian name had been used. TVNZ wrote:

Although we accept that use of the complainant’s nickname was a breach, it cannot be the case that, by itself, the footage of [the streets] and the reference to the gang association would constitute a breach of privacy. The statutory protection that victim "A" is entitled to is a protection of identity. It is not protection from the reporting of salient facts of a past life given in evidence at a public court hearing, if there is not an appreciable risk that such are likely to lead to her identification. It is only because when combined with the nickname the other locations might have confirmed identity [that TVNZ accepted that the street and gang-association references were] relevant.

TVNZ denied that the two separate news reports represented two breaches of privacy and, thereby, two separate offences. There were, it maintained:

…two news reports that evening but each report dealt with the same item from the court case. The later bulletin repeated the story, not with any intention of perpetuating the breach, but on the basis that there had been no realisation at the time that a breach had taken place.

Whilst not wishing to diminish the hurt that A felt, the broadcaster wrote, it did not consider that the formal complaints system was appropriate to recompense A for her loss of wages or legal expenses incurred. Equally, it argued, A’s fear of reprisals from gang members could not be a relevant consideration to the question of penalty, as that part of her evidence "would not have been protected by itself".

TVNZ distinguished the case of TV3 Network Services Ltd v Broadcasting Standards Authority to which the Police had referred. That case, the broadcaster alleged, involved deliberate surreptitious filming and intentional interference in the nature of prying. There, it continued, compensation of $750.00 was ordered to the complainant by the Authority. In this case, TVNZ wrote, the reporter acted in good faith, there was no intention to breach any suppression orders, and the reporter was apologetic when he discovered A’s concerns. It concluded that "any penalty should be at the lower end of the scale".

Further Correspondence

In a letter dated 2 June, TVNZ submitted the transcript of a broadcast earlier that day on Newstalk ZB . In that transcript, TVNZ wrote, the sister of A (who was being interviewed by the programme’s host) cited the exact words which TVNZ had used in its broadcasts, including the diminutive of A. That, the broadcaster stressed, placed a different complexion on the Police’s description of the anguish which TVNZ’s broadcast had caused to A. Surely, it asked, the sister would have refrained from using the nickname had A’s anguish been on the scale suggested by the Police. TVNZ concluded:

…we are not defending our use of the nickname – on balance we should not have used it. Nor do we wish to belittle the hurt felt by victim "A". We simply feel that her sister’s willingness to repeat the line puts the matter in a slightly different perspective.

Responding to TVNZ’s comments in a letter dated 5 June, Senior Sergeant Allcock on behalf of the Police claimed that TVNZ continued to miss the point of the original complaint. Noting that TVNZ had accepted in all its correspondence that it should not have used the name, the Police wrote that TVNZ now stated that the impact of its news items on A could not be as she had maintained in view of her sister’s actions in calling talkback radio. Mr Allcock’s letter continued:

…we are talking of a woman who was raped, discovered she was pregnant as a result of the rape, suffered complications losing the two children she was carrying and as a result cannot have children naturally. This woman then had to wait ten years to see her attacker brought to justice and then had to sit and listen to two TVNZ news items which identified her as the victim who had given evidence that day. [TVNZ] is in no position to judge the scale of anguish felt by A as a result of the publication of details on National News which clearly identified this woman.

Further, the Police wrote, it was misleading and inaccurate to refer to the name used in the broadcasts as A’s nickname. For as long as she could remember A had been called by the name used in the broadcasts.

The Police denied that the name of the woman given as the interviewee in the radio broadcast was the name of A’s sister. They stressed that because A’s sister was well aware of the impact of the TVNZ broadcasts on A, she had used a false name when speaking on the radio. She had inadvertently let A’s name slip during the radio interview and was extremely distressed about it. A, too, was extremely surprised and upset about her sister’s actions, the Police wrote.

The intention of the sister’s call to talkback radio, the Police claimed, was to impress upon listeners that victims could not be discounted in the way that the lawyers for Malcolm Rewa had attempted to do in a TVNZ interview the night before the radio programme. Had it not been for the two TVNZ broadcasts, the Police contended, then nobody listening to that radio talkback show would have known whom A’s sister was talking about.

The talkback radio broadcast, unlike the TVNZ news items, did not have the four other factors present which, together with the name of A, clearly identified her, Mr Allcock wrote. In his view, it was therefore untenable for TVNZ to claim that A’s sister’s actions required the matter of compensation to be looked at in a different perspective. He reiterated that the damage caused by TVNZ’s breach remained the same and nothing done subsequently could alter that fact. Furthermore, he stressed, family, friends and work colleagues who were able to identify A did so from the TVNZ news item. The subsequent radio talkback programme and interviews A had had done did not contain anything which would identify her, he concluded.

In response to a letter from TVNZ dated 9 June and requesting the interviews which A had given, the Police made available to the Authority and to TVNZ a copy of an interview published in the NZ Woman’s Weekly on 15 June. Nothing in that, the Police contended, could lead to the identification of A.

Following a written request from the Authority on 17 June, TVNZ in a letter to the Authority dated 22 June advised that it had nothing further to add, in regard to any aspects of penalty which the Authority might impose.