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Broadcaster TV3 NETWORK SERVICES LIMITED - 1998-080 [1998] NZBSA 75 (23 July 1998) BEFORE THE BROADCASTING STANDARDS
AUTHORITY Decision
No: 1998-080 IN
THE MATTER of the Broadcasting Act 1989 AND IN THE MATTER of a
complaint by Broadcaster
S R Maling Chairperson 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 AuthoritySam MalingChairperson23 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.2viii |
