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Before the Broadcasting Standards Authority
Decision No: 1998-080
Dated the 23rd day of July 1998
In the matter of the Broadcasting Act 1989
And
In the matter of a complaint by
Child Advocacy Trust TV3 Network Services Limited
of Auckland Broadcaster
S R Maling Chairperson
L M Loates
R McLeod
J Withers
DECISION
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.
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